Ross C. Anderson (#0109) LEWIS HANSENrockyanderson.org/wp-content/uploads/2018/04/dkt...Case No. 2:15-cv-00862 Plaintiff/Counterclaim Defendant, v. BRETT OLSEN, BRIAN PURVIS, JOSEPH

Ross C. Anderson (#0109)

LEWIS HANSEN The Judge Building

Eight East Broadway, Suite 410

Salt Lake City, Utah 84111

Telephone: (801) 746-6300

Fax: (801) 746-6301

[email protected]

Attorney for Plaintiff/Counterclaim Defendant

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

SEAN KENDALL,

PLAINTIFF’S MEMORANDUM IN

OPPOSITION TO DEFENDANTS

OLSEN, PURVIS AND SALT LAKE CITY

CORPORATION’S MOTION FOR

SUMMARY JUDGMENT

Case No. 2:15-cv-00862

Plaintiff/Counterclaim Defendant,

v.

BRETT OLSEN, BRIAN PURVIS, JOSEPH

ALLEN EVERETT, TOM EDMUNDSON,

GEORGE S. PREGMAN, and SALT LAKE

CITY CORPORATION,

Defendants/Counterclaim Plaintiffs.

District Judge Robert J. Shelby

Magistrate Judge Dustin B. Pead

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ...........................................................................................................v

INTRODUCTION ...........................................................................................................................1

BACKGROUND STATEMENT OF FACTS .................................................................................5

KENDALL’S RESPONSE TO STATEMENT OF ELEMENTS AND UNDISPUTED

MATERIAL FACTS .....................................................................................................................10

I. OFFICER OLSEN’S ENTRY INTO KENDALL’S BACKYARD ..................................11

A. Qualified Immunity for Kendall’s Claims Under 42 U.S.C. § 1983 ...........................11

1. Movants’ Statement of Elements and Kendall’s Responses ..................................11

2. Movants’ Statement of “Undisputed Material Facts” Under Officer Olsen’s

Entry into Kendall’s Backyard – Qualified Immunity for Kendall’s Claims

Under 42 U.S.C. § 1983 and Kendall’s Responses................................................16

3. Kendall’s Statement of Additional Material Facts .................................................28

4. Kendall’s Statement of Additional Elements and Material Facts ..........................31

a. Elements and Material Facts for Unconstitutional Search ...............................31

b. Elements and Material Facts for a § 1983 Claim of Unconstitutional

Search ...............................................................................................................37

B. Kendall’s Utah Constitutional Claims .........................................................................37

1. Movants’ Statement of Elements and Kendall’s Responses ..................................37

2. Kendall’s Responses to Movants’ Statement of “Undisputed Material Facts” .....39

C. Kendall’s State Law Claims for Trespass and Negligence ..........................................40

1. Movants’ Statement of Elements and Kendall’s Responses ..................................40

2. Kendall’s Response to Movants’ Statement of “Undisputed Material Facts” .......43

II. OFFICER OLSEN’S SEIZURE OF GEIST ......................................................................44

A. Qualified Immunity for Kendall’s Claims Under 42 U.S.C. 1983 ..............................44

1. Movants’ Statement of Elements and Kendall’s Responses .................................44

2. Movants’ Statement of “Undisputed Material Facts” Under Officer Olsen’s

Seizure of Geist – Qualified Immunity for Kendall’s Claims Under 42 U.S.C.

§ 1983 and Kendall’s Responses ...........................................................................45

3. Kendall’s Statement of Additional Elements and Material Facts ..........................61

a. Elements and Material Facts for Unconstitutional Seizure ...............................61

B. Kendall’s State Constitutional Claims .........................................................................64

1. Movants’ Statement of Elements and Kendall’s Responses ..................................64

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2. Kendall’s Reponses to Movants’ Statements of “Undisputed Material Facts” .....64

C. Kendall’s State Law Claims for Trespass to Chattel, Conversion, Negligence, and

Intentional Infliction of Emotional Distress ................................................................65

1. Movants’ Statement of Elements and Kendall’s Responses ..................................65

2. Kendall’s Reponses to Movants’ Statements of “Undisputed Material Facts” .....66

3. Kendall’s Statement of Additional Material Facts .................................................67

4. Kendall’s Statement of Additional Elements and Material Facts ..........................67

ARGUMENT .................................................................................................................................71

I. OFFICER OLSEN’S ENTRY INTO AND SEARCH OF THE CURTILAGE OF

KENDALL’S HOME, PURSUANT TO THE INSTRUCTIONS OF PURVIS, WAS AN

UNCONSTITUTIONAL SEARCH UNDER BOTH THE UNITED STATES AND

UTAH CONSTITUTIONS ................................................................................................71

A. The United States and Utah Constitutions Provide Essentially the Same Protections

Against Unreasonable, Warrantless Searches ..............................................................71

1. Just as Federal Constitutional Provisions May Be the Basis for an Award of

Money Damages Against Government Agents Acting Under Color of Law, Utah

Law Similarly Provides Remedies for Violations of Self-Executing State

Constitutional Provisions .......................................................................................72

B. The Entry into and Search of the Curtilage of Kendall’s Home Was a “Search”

Within the Meaning of the Fourth Amendment of the United States Constitution and

Article I, Section 14 of the Utah Constitution .............................................................74

C. The Law Was Clearly Established That the Warrantless Search of the Curtilage of

Kendall’s Home Could Not Be Justified by Exigent Circumstances Because There

Was No Cause to Believe There Was Any Association Between the Kendall Property

and the Perceived Emergency ......................................................................................76

II. OFFICER OLSEN’S KILLING OF GEIST WAS AN UNCONTITUTIONAL SEIZURE

UNDER THE UNITED STATES AND UTAH CONSTITUTIONS FOR WHICH

PURVIS AND OLSEN CANNOT ESCAPE ACCOUNTABILITY BY MEANS OF

QUALIFIED IMMUNITY ................................................................................................82

A. The Law Was Clearly Established That the Killing of Geist Was a Seizure Within the

Meaning of the Constitutional Protections Against Unreasonable Seizures ...............82

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B. The Law Was Clearly Established That the Killing of Geist Was Unnecessary and

Unreasonable and, Therefore, a Violation of the Fourth Amendment and Article I,

Section 14 of the Utah Constitution .............................................................................83

C. The Law Was Clearly Established That the Justification of Exigent Circumstances for

Not Obtaining a Warrant for the Seizure of Geist Is Unavailing Because Olsen and

Purvis Created the Exigency ........................................................................................86

III. EITHER THE CITY OR OLSEN IS LIABLE FOR OLSEN’S NEGLIGENCE AND

TRESPASS .......................................................................................................................87

IV. SALT LAKE CITY IS LIABLE FOR THE NEGILIGENCE OF THOSE WHO HAVE

ACTED ON BEHALF OF THE CITY, PARTICULARLY IN REGARD TO POLICIES

AND PRACTICES WHICH LED TO THE DEATH OF GEIST ...................................90

V. KENDALL IS ENTITLED TO PROCEED TO TRIAL ON HIS CLAIMS AGAINST

OLSEN FOR TRESPASS TO CHATTELS AND CONVERSION ................................91

VI. KENDALL IS ENTITLED TO PROCEED TO TRIAL ON HIS CLAIM AGAINST

OLSEN FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS ...............92

VII. SUMMARY JUDGMENT MUST BE DENIED BECAUSE OF THE

OVERWHELMING EVIDENCE SUPPORTING KENDALL’S CLAIMS ...................93

CONCLUSION ........................................................................................................................94

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TABLE OF AUTHORITIES

Cases

Andrews v. City of W. Branch, 454 F.3d 914 (8th Cir. 2006) ....................................................... 85

Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710 (2009) ................................................................ 35

Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971) ..................................... 72

B.R. ex rel. Jeffs v. West, 2012 UT 11, 275 P.3d 228 ............................................................. 41, 68

Bennett v. Jones, Waldo, Holbrook & McDonough, 2003 UT 9, 70 P.3d 17 ............................... 92

Berry v. Beech Aircraft, 717 P.2d 670 (Utah 1985) ................................................................ 87, 88

Bott v. DeLand, 922 P.2d 732 (Utah 1996)....................................................................... 39, 72, 73

Branson v. Price, 2015 WL 5562174 (D. Colo. 2015) ................................................................. 85

Brown v. Muhlenberg Twp., 269 F.3d 205 (3d Cir. 2001) ............................................................ 66

C.J.C. v. Corporation of Catholic Bishop of Yakima, 985 P.2d 262 (Wash. 1999)...................... 90

Camara v. Municipal Court, 387 U.S. 523 (1967) ....................................................................... 75

Campbell v. City of Spencer, 682 F.3d 1278 (10th Cir. 2012) ..................................................... 83

Coates v. Wells Fargo Home Mortgage, Inc., 2011 WL 1232344 (D. Utah 2011) ...................... 40

Criscuolo v. Grant County, 540 Fed. Appx. 562 (9th Cir. 2013) ................................................. 84

Daughen v. Fox, 539 A.2d 858 (Pa. Super. 1988) .................................................................. 66, 93

Day v. State ex rel. Utah Dept. of Public Safety, 1999 UT 46, 980 P.2d 1171 ............................ 43

DiCesare v. Stuart, 12 F.3d 973 (10th Cir. 1993)......................................................................... 83

Fibro Trust, Inc. v. Brahman Fin., Inc., 1999 UT 13, 974 P.2d 288 ............................................ 92

Flint v. City of Milwaukee, 91 F.Supp.3d 1032 (E.D. Wis. 2015) ................................................ 84

Florida v. Jardines, 133 S.Ct. 1409 (2013) ................................................................ 14, 32, 74, 75

Galindo v. Town of Silver City, 127 F. App'x 459 (10th Cir. 2005) ............................................. 76

Gill v. Brown, 695 P.2d 1276 (Idaho App. 1985) ................................................................... 66, 93

Gillmor v. Salt Lake City, 89 P. 714 (Utah 1907) ......................................................................... 63

Gregory v. City of Vallejo, 63 F.Supp.3d 1171 (E.D. Cal. 2014) ................................................. 94

Hatch v. Davis, 2006 UT 44, 147 P.3d 383 .................................................................................. 92

Horton v. California, 496 U.S. 128 (1990) ................................................................................... 87

Hunsaker v. State, 870 P.2d 803 (Utah 1993)............................................................................... 68

Illinois v. Caballes, 543 U.S. 405 (2005) ..................................................................................... 75

Jensen v. Cunningham, 2011 UT 17, 250 P.3d 465 .......................................................... 38, 72, 73

Johnson v. Rodrigues, 293 F.3d 1196 (10th Cir. 2002) ................................................................ 37

Jones v. Salt Lake City Corporation, 2003 UT App 355, 78 P.3d 988......................................... 92

Katsaris v. Cook, 180 Cal. App. 3d 256 (1986) ...................................................................... 66, 93

Katz v. United States, 389 U.S. 347 (1967) ............................................................................ 32, 74

Kincheloe v. Caudle, 2009 WL 3381047 (W.D. Tex. 2009) ........................................................ 84

Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) .............................. 32

Lawrence v. Intermountain, Inc., 2010 UT App 313 16 , 243 P.3d 508....................................... 65

Lincecum v. Smith, 287 So.2d 625 (La. App. 1974) ..................................................................... 92

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Lyon v. Burton, 2000 UT 55 5 P.3d 616 ....................................................................................... 87

Manzanares v. Higdon, 575 F.3d 1135 (10th Cir. 2009) .............................................................. 77

Marino v. Mayger, 118 Fed.Appx. 393 (10th Cir. 2004).............................................................. 40

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).................................... 93

Mayfield v. Bethards, 2016 WL 3397503 (10th Cir. 2016) ........................................ 44, 61, 82, 83

McInerney v. King, 791 F.3d 1224 (10th Cir. 2015)............................................................... 63, 86

Munger v. City of Glasgow Police Dept., 227 F.3d 1083 (9th Cir. 2000) .................................... 41

Oliver v. United States, 656 A.2d 1159 (D.C.App. 1995) ............................................................ 78

Phillips v. James, 422 F.3d 1075 (10th Cir. 2005) ....................................................................... 44

Purkey v. Roberts, 2012 UT App 241, 285 P.3d 1242............................................................ 40, 89

Rabideau v. City of Racine, 627 N.W.2d 795 (Wis. 2001) ........................................................... 66

Reeves v. Chruchich, 484 F.3d 1244 (10th Cir. 2007) .................................................................. 13

Richardson v. Fairbanks N. Star Borough, 705 P.2d 454 (Alaska 1985)............................... 66, 93

Robinson v. Pezzat, 818 F.3d 1 (D.C. Cir. 2016) .......................................................................... 85

Ross v. Schackel, 920 P.2d 1159, (Utah 1996) ............................................................................. 43

Salt Lake City v. Davidson, 2000 UT App 12, 994 P.2d 1283 ................................... 15, 72, 77, 81

Spackman ex rel. Spackman v. Bd. of Educ., 2000 UT 87, 16 P.3d 533........................... 38, 72, 73

Spalding v. Allred, 64 P. 1100 (Utah 1902) .................................................................................. 43

Stanko v. Maher, 419 F.3d 1107 (10th Cir. 2005) ........................................................................ 83

State of Utah v. Vasquez-Marquez, 2009 UT App 14, 204 P.3d 178 ........................................... 15

State v. Anderson, 910 P.2d 1229 (Utah 1996) ............................................................................. 72

State v. Beede, 406 A.2d 125 (N.H. 1979) .................................................................................... 76

State v. Comer, 2002 UT App 219, 51 P.3d 55 ...................................................................... 77, 81

State v. Larocco, 794 P.2d 460 (Utah 1990) ................................................................................. 72

State v. Yoder, 935 P.2d 534 (Utah 1997)..................................................................................... 76

Taylor v. City of Chicago, 2010 WL 4877797 (N.D. Ill. 2010) .................................................... 85

United States v. Christy, 785 F.Supp.2d 1004 (D.N.M. 2011) ............................................... 32, 77

United States v. Gambino-Zavala, 539 F.3d 1221 (10th Cir. 2008) ........................... 15, 35, 36, 82

United States v. Jacobsen, 466 U.S. 109 (1984) ........................................................................... 61

United States v. Jones, 44 F.3d 860 (10th Cir. 1995) ................................................................... 75

United States v. Jones, 565 U.S. ----, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) ................ 32, 74, 75

United States v. Najar, 451 F.3d 710 (10th Cir. 2006) ......................................... 15, 36, 63, 81, 82

United States v. Rico, 51 F.3d 495 (5th Cir. 1995) ....................................................................... 87

United States v. Smith, 797 F.2d 836 (10th Cir. 1986) ................................................................. 82

Viilo v. Eyre, 547 F.3d 707 (7th Cir. 2008) .................................................................................. 84

Welsh v. Wisconsin, 466 U.S. 740 (1984) ..................................................................................... 81

Wilson v. Jara, 866 F.Supp.2d 1270 (D.N.M. 2011) .................................................................... 36

Ysasi v. Brown, 3 F.Supp.3d 1088 (D.N.M. 2014) ........................................................... 13, 32, 35

Zurcher v. Stanford Daily, 436 U.S. 547 (1978) .................................................................... 14, 80

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Statutes

42 U.S.C. § 1983 ................................................................................. 11, 16, 31, 44, 45, 37, 38, 61

Article I, section 14 of the Utah Constitution ....................... 1, 4, 38, 39, 43, 44, 64, 71, 73, 76, 83

Article I, section 7 of the Utah Constitution ........................................................................... 64, 67

Article I, section 1 of the Utah Constitution ............................................................................. 1, 64

Utah Code Ann. § 63G-7-301(2)(i) .......................................................... 42, 43, 69, 88, 89, 91, 92

Utah Code Ann. § 63G-7-102(10) ................................................................................................ 90

Utah Code Ann. § 63G-7-301(4) .......................................................................... 42, 43, 69, 88, 89

Utah Code Ann. § 63G-7-301(5)(b).............................................................................................. 89

Rules

10th Cir. Rule 32.1(B) .................................................................................................................. 76

FED. R. CIV. P. 56(a) ................................................................................................................... 93

Other Authorities

Restatement (Second) of Torts § 217 (1965) ................................................................................ 65

Restatement (Second) of Torts § 218 (1965) .......................................................................... 65, 91

Restatement (Second) of Torts § 226 (1965) ................................................................................ 92

Restatement (Second) of Torts § 46 (1965) ............................................................................ 92, 93

Restatement (Second) of Torts, § 158(a) (1965) .......................................................................... 89

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INTRODUCTION

Plaintiff Sean Kendall (“Kendall”) has brought this action against Brian Purvis

(“Purvis”), Brett Olsen (“Olsen”), and Salt Lake City Corporation (“the City”), inter alia, for their

actions—and in the case of the City, its inaction—that led to the brutal, senseless killing by Olsen

of Kendall’s beloved, smart, playful, kind, harmless Weimaraner dog, Geist. As governmental

agents involved in a search for a missing boy, Olsen and Purvis abused their power and positions

with the Salt Lake City Police Department (“SLCPD”) by ignoring and violating the clearly

established restrictions imposed upon government and governmental agents under state and federal

constitutional prohibitions against unreasonable searches and seizures—prohibitions that are

fundamental to a free society.

Kendall withdraws his claims for violations of the due process clauses of the United States

and Utah Constitutions and for violation of the Inherent and Inalienable Rights Clause (Article I,

Section 1) of the Utah Constitution.1 Such claims are more appropriately analyzed under the

federal and state constitutional provisions forbidding unreasonable searches and seizures.2

Summary judgment3 in favor of Olsen, Purvis, and the City (collectively, “Movants”) under

Kendall’s First, Second, Third, Fourth, Seventh, Eighth, Ninth, Tenth, Eleventh, and Fourteenth

claims must be denied because:

1 Kendall stipulates to the following deletions from his Amended Complaint: (1) Delete the second

sentence of paragraph 32; (2) delete the words “and Fifth” and delete the “s” in “Amendments” in

paragraph 40; (3) delete the Fifth Claim for Relief; and (4) delete the Sixth Claim for Relief. 2 The federal constitutional prohibition against unreasonable searches and seizures is the Fourth

Amendment to the United States Constitution, made applicable to the states by the Fourteenth

Amendment. The similar Utah constitutional prohibition is Article I, Section 14 of the Utah

Constitution. 3 Although no motion has been filed or set forth in the document entitled “Motion for Summary

Judgment and Memorandum in Support,” it is apparent from the Conclusion in that document, at

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1. Purvis instructed police officers, including Olsen, to engage in searches of homes and

the curtilages of homes, without warrants, without consent, and without there being any

belief, or reason to believe, there was any connection between the properties to be

searched and the supposedly missing boy.

2. Olsen unconstitutionally entered Kendall’s backyard, wandered around the yard,

opened and searched a shed, and killed Geist, Kendall’s beloved Weimaraner dog (a)

without a warrant, (b) without consent, (c) without any belief, or reason to believe,

there was any connection between the curtilage of Kendall’s home and the supposedly

missing boy, (d) without taking any reasonable measures to determine if a dog was in

the yard, (e) without planning what could be done to deal with Geist without using

unnecessary lethal force, (f) without acting reasonably upon learning Geist was in the

backyard, and (g) without using reasonable non-lethal alternatives in Olsen’s

interaction with Geist.

3. Without a warrant, without consent, and without any reasonable justification, Olsen

unconstitutionally seized Geist by unnecessarily shooting and killing him. Any

exigency claimed by Olsen was a product of his own wrongful actions in (a)

unconstitutionally entering the backyard where Geist lived, and (b) provoking Geist to

run after him by senselessly running away from Geist simply because Geist was doing

what harmless dogs do when someone behaves as Olsen did.

45, that Defendants Olsen, Purvis, and Salt Lake City Corporation are asserting entitlement to

summary judgment under the First through Eleventh and Fourteenth Claims for Relief in Kendall’s

Amended Complaint.

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4. Olsen and Purvis are not protected by qualified immunity from accountability for their

unconstitutional conduct. The law was clearly established at the time of Purvis’s

unconstitutional instructions and Olsen’s unconstitutional search and seizure that (1)

regardless of the label used by police officers, a search for a missing person in a place

where there is a reasonable expectation of privacy, particularly a home, is a “search”

within the meaning of the constitutional prohibitions against unreasonable searches; (2)

a warrant is required for a search or seizure by a police officer, except when very

narrow exceptions, not applicable to this matter, apply; (3) the perception that a child

is missing does not give police carte blanche to search homes and curtilages without a

warrant and without consent wherever they believe the child could possibly have

traveled and wherever they believe the child could possibly have had access; (4) to

constitutionally search for a missing person in a home or curtilage, without a warrant

and without consent, a police officer must have reasonable cause to believe there is a

connection between the particular property to be searched and the emergency giving

rise to the need for a search; and (5) a police officer seeking to justify a warrantless

search by invoking “exigent circumstances” cannot escape liability for the

unconstitutional search if he/she created the exigency, as Olsen did with respect to his

brutal killing of Geist.

5. The constitutionally erroneous search policy of, and the complete absence of training

with respect to police interactions with pet dogs by, the SLCPD (for which Salt Lake

City Corporation is responsible) contributed to and were causal factors in the

outrageous killing of Geist. One written policy of the SLCPD virtually invites police

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officers to engage in warrantless, unconstitutional searches by providing that “An

officer may enter a home or building without a warrant when the following exigent

circumstances exist: . . . Imminent danger or risk of harm to police officers and others.”

That policy and direction severely misstates the exigent circumstances exception to the

warrant requirement of the Fourth Amendment by omitting the crucial factor that there

must be a reasonable belief that the person at risk is in or on the premises to be searched

or that the particular property to be searched has a connection to the perceived

emergency that would lead one to reasonably believe that an immediate, warrantless

search of that specific property is necessary.

6. Article I, section 14 of the Utah Constitution, which prohibits unreasonable,

warrantless searches and seizures, provides at least the same protections as the Fourth

Amendment of the United States Constitution and, inasmuch as the Utah constitutional

provision is self-executing, monetary damages are an appropriate remedy for a

violation of it.

7. Olsen is liable to Kendall for trespass because he entered Kendall’s property without

legal justification. Purvis is liable to Kendall for trespass because he caused Olsen to

enter Kendall’s property without legal justification.

8. Olsen is liable to Kendall for trespass to chattels because Olsen knowingly and willfully

dispossessed Kendall of Geist and his companionship by wrongfully shooting and

killing Geist.

9. Olsen is liable to Kendall for conversion because Olsen knowingly and willfully

interfered with Geist, Kendall’s property, when Olsen took possession and control of

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Geist by intentionally killing him, thereby depriving Kendall of the use, enjoyment,

and possession of Geist.

10. Pursuant to the Governmental Immunity Act of Utah, Salt Lake City is liable for the

negligence of its officers and agents, including negligence during the course of a search,

negligence in the promulgation of legally erroneous policies and the failure to

promulgate any policy regarding police interactions with domestic pets, and negligence

in failing to adequately train officers to avoid harming or killing pet dogs.

BACKGROUND STATEMENT OF FACTS

On June 18, 2014,4 Elise Horman called 911 and reported her son, K.H., was missing.5

K.H., who was two or three years old,6 was actually asleep on the floor of the family room in the

basement of his family’s home and would have been in full view if anyone, including police

officers, had simply walked around the room and moved some of the clutter, including an empty

box.7 The negligent failure of the officers charged with searching the house to find K.H., which

4 The search for K.H. and the killing of Geist occurred on June 18, 2014. See Deposition of Joseph

A. Everett (“Everett Depo.”), excerpts of which are Exhibit “1” to the Declaration of Ross C.

Anderson (“Anderson Decl.”), Exhibit “A” hereto, 6:9–14; Deposition of Brett W. Olsen (“Olsen

Depo.”), excerpts of which are Exhibit “2” to Anderson Decl., 47:5–9. 5 Deposition of Elise Horman (“Horman Depo.”), excerpts of which are Exhibit “3” to Anderson

Decl., 18:14–19. 6 At her deposition on July 6, 2016 (just over two years since the search for the boy and the killing

of Geist), K.H.’s mother, Elise Horman, stated he was, at the time of the deposition, four years of

age. Horman Depo., 3:24–4:2. Joseph Everett (“Everett”) said he was two or three years old.

Everett Depo., 11:8–9. Olsen said he was three years-old. Olsen Depo., 45:9; Exhibit “1” to Olsen

Depo., page 3 of 18, dated June 18, 2014 (“While assisting in the search for a 3-year-old boy, I

shot and killed a dog at the listed address.”); Exhibit “6” to Olsen Depo. (“This is a picture of

[redacted] (3 years old) who went missing from 2511 South Fillmore at 3:15 today.”) 7 Deposition of Daniel Glen Davis (“Davis Depo”), excerpts of which are Exhibit “4” to Anderson

Decl., 27:19–30:21.

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led to many officers being called to conduct a neighborhood search, “is a very sore subject” for

Olsen.8

Olsen, who participated with other SLCPD officers in a neighborhood search for K.H., was

told by the Watch Commander, Lieutenant Purvis9 to look “everywhere” they could for the boy.10

Olsen understood Purvis to mean that he and other officers were to look “inside homes” and “inside

enclosed yards,” “[b]ased on consent or exigency or whatever.”11 Purvis expected that the officers

he supervised would enter yards if they could not see the entire yard, even though there was no

warrant, no consent, and no connection between the specific property and the perceived

emergency.12

During the course of their search of the neighborhood, Olsen, along with Officer Gordon

Worsencroft (“Worsencroft”),13 went to the home of Kendall,14 which was approximately .133 (or

8 A: Yeah. I – that’s what I heard after. Mr. Anderson, this is a very sore subject for

me. I’m not very happy with how the search was conducted and so, yeah, I heard

later and it only – sore subject with me.

Q: Because none of this happened – would have happened with Geist had it not

been for the negligent search?

A: Correct.

Olsen Depo., 103:18–104:1. 9 Olsen Depo., 48:22–49:2. 10 Olsen Depo., 55:25–56:8. 11 Olsen Depo., 56:2–13, 112:23–114:8. See also Deposition of Gordon Worsencroft

(“Worsencroft Depo.”), excerpts of which are Exhibit “5” to Anderson Decl., 24:19–25:4:

Q: And was it also your expectation or your understanding that you were to enter

people’s yards?

A: If there was access to the backyard, yes, if we could check it and clear it, yes.

Q: Even without a warrant, even without permission?

A: Correct.” 12 Deposition of Brian Purvis (“Purvis Depo.”), excerpts of which are Exhibit “6” to Anderson

Decl., 73:23–74:21. 13 Worsencroft Depo., 19:20–20:5. 14 Olsen Depo., 67:22–68:4.

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over 1/8) miles (about 10 houses away) from the Horman home.15

Without a warrant, without consent, and without having any reason to believe there was

any connection between Kendall’s backyard and K.H. or the circumstances of his supposed

disappearance,16 Olsen opened the latch on a gate handle, opened and walked through the gate,

walked around Kendall’s backyard, and opened the door to, and looked inside, a shed in Kendall’s

backyard.17 His only after-the-fact explanations for engaging in a warrantless, non-consensual

search of the curtilage of Kendall’s home, are that (1) when looking for a missing person, “that’s

not really a search”18 and (2) K.H. could have traveled to Kendall’s home and entered the backyard,

just as he could have travelled to and entered every other home in the general area.19

After Olsen unconstitutionally entered Kendall’s backyard, without a warrant, without

consent, without taking measures known by Olsen20 to see if a dog were present in the yard,21 and

15 See Motion for Summary Judgment and Memorandum in Support (“Movants’ Memorandum”),

at 7 n. 3. See also Declaration of Sean Kendall (“Kendall Declaration”) attached hereto as Exhibit

“B”, ¶¶ 3–12. 16 Olsen Depo., 75:1–76:24. 17 Olsen Depo., 80:22–24, 84:1–87:3, 114:9–10,18–23; Exhibit “12”. 18 Olsen Depo., 8:5–22, 9:10–15 (“Q: And if it’s a noncriminal matter like a missing person? A:

Well, that’s not really a search. That’s more of a canvas. . . . Q: Then tell me what you mean by

‘canvas’ in connection with whether you need a warrant or not. A: In relation to this particular

case, a canvas meant that we were going to look anywhere a small child could reasonably be or

reasonably have been taken.”) 19 Q: So, in your view, any property that’s accessible and within the range of what

you think a three-year-old boy could walk to, given the elapsed time, is fair game

for a search by a police officer?

A: Provided he could get to it and it was very accessible, yes.

Olsen Depo. 90:4–9. See also Olsen Depo., 76:9–24. 20 Olsen Depo., 24:11–26:5. 21 Olsen Depo., 29:17–22, 87:19–21.

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without even waiting to see if Worsencroft could obtain consent,22 Olsen opened the gate, walked

around the yard, opened a shed door, searched the shed, then closed the shed door.23 At that point,

Geist barked, 24 as dogs generally, and Weimaraners specifically, do, naturally and harmlessly.25

Then Olsen ran.26 Only then, after Olsen started running, Geist ran toward Olsen.27 Again, that is

what dogs generally, and Weimaraners specifically, do, naturally and harmlessly.28 Unless

22 A: And I knocked, nothing, knocked again, then I heard a growling or a bark, and

then I heard two shots from a gun.

Worsencroft Depo., 38:3–5.

Q: And you’d knocked either once or twice when you heard the dog bark and the

shots fired, correct?

A: Yes. Yes.

Q: So Officer Olsen had actually entered the backyard before you had an

opportunity to speak to someone, if someone was, in fact, in the house?

A: Yes.

Worsencroft Depo., 57:1–7. 23 Olsen Depo., 84:1–3, 85:6–86:18, 114:9–10, 18–23; Exhibit “12”. 24 Olsen Depo., 86:8-23. 25 Declaration of Heather Beck (“Beck Decl.”), Exhibit “C” hereto, ¶¶ 6–7, 12, 18–23; Declaration

of Julianne Brooks (“Brooks Decl.”), Exhibit “D” hereto, ¶¶ 5–6, 11; Declaration of Shea Kendall

(“Shea Decl.”), Exhibit E hereto, ¶¶ 5, 11. 26 Olsen Depo., 86:18–87:5. 27 A: When I pushed it closed, that’s when I started hearing Geist, and it started

barking very angrily, and so I thought there is a dog back there and so I started

going around here as fast as I could. I wanted to get out of the backyard.

Q: Where did you go?

A: I started running up this way. It was kind of a sideways run because I wanted

to keep an eye on what was coming, and I attempted to go through underneath this

to get out of this gate.

Q: So – you were running away from the dog?

A: Yes. I started to.

Q: Did you ever learn that’s a good way to keep a dog from coming after you?

A: It’s just instinct. So as he started charging at me, that’s when I stopped.

Olsen Depo., 86:18–87:11 (emphasis added). 28 Beck Decl., ¶¶ 9–16; Brooks Decl., ¶¶ 7, 10, 13; Shea Decl., ¶ 7.

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cornered or otherwise restrained in their freedom of movement, they are all bark and no bite.29

Only because of Olsen’s unreasonable and unfounded fear, and being far too ready to draw

his gun and kill Geist, he cavalierly, unnecessarily, and unreasonably pulled out his gun (even

though he had a police baton,30 which he never considered using,31 and was presumably wearing

sturdy police footwear that would have aided Olsen if he had simply blocked or kicked Geist) and

shot Geist dead. Even if there were exigent circumstances for the seizure of Geist—which there

were not32—any exigency that may have occurred was created by Olsen’s own wrongful conduct.

That supposed exigency—which Olsen erroneously and unreasonably thinks existed because a dog

barked at him when Olsen invaded the dog’s yard, ran toward Olsen after Olsen began running,

and had, according to Olsen’s account, a “mean demeanor,”33—would have been entirely avoided

had Olsen not unconstitutionally entered and searched the curtilage of Kendall’s home (i.e., Geist’s

home) and had Olsen not carelessly and unreasonably started running when he first heard Geist’s

bark.34

The SLCPD written policy relating to searches without warrants because of “exigent

circumstances” is woefully erroneous and dangerously misleading insofar as it says nothing about

any requirement that there be reasonable cause to believe there is a nexus between the particular

property to be searched and the emergency situation giving rise to the need to search without a

29 Beck Decl., ¶ 24; Brooks Decl., ¶ 6. 30 Olsen Depo., 26:8–12. 31 Transcript of Internal Affairs Interview of Brett Olsen (“Olsen Interview”), Exhibit “1” to

Declaration of Linda Nelford, Exhibit “F” hereto, 9:18–19. 32 Beck Decl., ¶¶ 3–8, 12–23, 26, 30; Brooks Decl., ¶¶ 5–7, 10–13. 33 Olsen Depo., 91:1–3, 91:22–23, 92:1–93:10. 34 Beck Decl., ¶ 9–12, 14–16.

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warrant.35

Also, the SLCPD had never provided any training or provided any policies to police

officers regarding how to deal with dogs and refrain from harming or killing them.36 Since Geist

was killed, the training by the SLCPD includes the following teaching regarding interactions with

dogs: “Always not to run, for sure, and to stand firm and see if the dog will back away from you.”37

KENDALL’S RESPONSE TO STATEMENT OF ELEMENTS

AND UNDISPUTED MATERIAL FACTS

The Rules of Practice of the United States District Court for the District of Utah (“Rules

of Practice”) provide standards for lawyers, many of which are to make proceedings more orderly

and helpful to all concerned, including the Court, in moving matters toward an efficient resolution.

The Rules of Practice under DUCivR 56-1 state specifically what is expected in memoranda in

support of and opposition to motions for summary judgment. Those rules require the movant to

set forth “each legal element required to prevail on the motion,” DUCivR 56-1(b)(2)(A), “[c]itation

to legal authority supporting each stated element (without argument),” DUCivR. 56-1(b)(2)(B),

and “[u]nder each element, a concise statement of the material facts necessary to meet that element

as to which the moving party contends no genuine issue exists.” DUCivR 56-1(b)(2)(C) (emphasis

added). Those rules are intended to “distil the relevant legal issues and material facts for the court

while reserving arguments for the respective argument sections of the motion and opposition

memorandum.” Advisory Committee Note, DUCivR 56-1. They are also obviously intended to

35 Worsencroft Depo., 81:19–83:5; Exhibit “3”. Worsencroft made clear that the SLCPD written

policy has misled him about the constitutional requirement of searching without a warrant on the

basis of exigent circumstances. Worsencroft Depo., 84:4–85:16. 36 Worsencroft Depo., 71:5–10; Deposition of Charles Thomas Edmundson, (“Edmundson

Depo.”), excerpts of which are Exhibit “7” to Anderson Decl., 8:17–20. 37 Edmundson Depo., 10:9–11:1.

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create an orderly format the parties and the Court can follow to address each element separately

and the underlying facts relating to each element. Without compliance by the moving party, the

requirements of DUCivR 56-1(c)(2) for the party opposing the motion for summary judgment are

made extremely difficult, if not impossible, to follow.

Instead of setting forth each legal element required to prevail on the motion, the Movants have

provided sprawling, disorderly narratives and case quotations—almost three pages for the

supposed “elements” of qualified immunity alone38—mixing together a hodge-podge of

combinations of all elements (sometimes repetitiously), various case quotations and citations that

do not address the element, and argument. The manner in which the Movants have presented the

“Statement of Elements and Material Facts,” which is incredibly confusing, makes it extremely

awkward and unnecessarily cumbersome—actually nearly impossible—for Kendall to meet his

obligation to respond to “each legal element stated by the moving party” and the material facts

necessary to meet each element.

The following constitutes the best effort of Kendall’s counsel to ferret out each of the

“elements” from what has been chaotically presented by the Movants and to comply with DUCivR

56-1(c)(2), following the order of presentation by the Movants.

I. OFFICER OLSEN’S ENTRY INTO KENDALL’S BACKYARD

A. Qualified Immunity for Kendall’s Claims Under 42 U.S.C. § 1983

1. Movants’ Statement of Elements and Kendall’s Responses

Because much of what Movants have presented as “elements” in Movants’ Memorandum

are not “elements” of qualified immunity, but rather helter-skelter statements, arguments, or

38Movants’ Memorandum, 2–4.

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quotations about such things as the purposes served by qualified immunity, the order in which the

court is to consider the elements, and exigent circumstances justifying warrantless entries, Kendall

disagrees with what has been stated under the section of Movants’ Memorandum entitled

“Elements,” except as noted below.

The following appear to be “elements” presented (together, rather than delineating each

one, and duplicatively) by Movants:

“The qualified immunity inquiry has two prongs: whether a constitutional violation

occurred, and whether the violated right was ‘clearly established’ at the time of the

violation.” (Citing Weise v. Casper, 593 F.3d 1163, 1166–67 (10th Cir. 2010).)

“In a summary judgment setting, when a defendant raises a qualified immunity

defense, a heavy two-part burden must be overcome by the plaintiff. [Citation

omitted.] Plaintiff must first establish that “the facts alleged [taken in the light most

favorable to the nonmoving party] show the officer’s conduct violated a

constitutional right.” [Citation omitted.] Second, Plaintiff must demonstrate that the

right was clearly established.” (Citing Phillips v. James, 422 F.3d 1075, 1080 (10th

Cir. 2005).)

Kendall agrees with those elements for a determination as to whether defendants are

entitled to qualified immunity for their unconstitutional conduct.

Kendall disagrees that Movants can demonstrate that the Movants did not violate

Kendall’s constitutional rights and that the constitutional rights were not clearly established,

particularly when the evidence is viewed in the light most favorable to Kendall.

Movants state as follows under the heading “elements” for qualified immunity (which will

be treated by Kendall as additional “elements” for purposes of DUCivR 56-1(c)(2)):

Official conduct that does not ‘compromise any legitimate interest in privacy’ is not a

search subject to the Fourth Amendment. (Citing Illinois v. Caballes, 543 U.S. 405, 408

(2005).)

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Kendall disagrees that is the correct principle of law39 applicable to the search of a person’s

home or the curtilage to the home. The correct, applicable principles of law are as follows:

It is well-settled an individual has a reasonable expectation of privacy in the interior

of one’s home and its curtilage. Kyllo v. United States, 533 U.S. 27, 34, 121 S.Ct.

2038, 150 L.Ed.2d 94 (2001); Oliver v. United States, 466 170, 180, 104 S.Ct. 1735,

80 L.Ed.2d 214 (1984); see also [United States v.] Hatfield, 333 F.3d [1189,] 1196

[(10th Cir. 2003)] (“[P]rivacy in the interior of a home and its curtilage are at the

core of what the Fourth Amendment protects….”).

Reeves v. Chruchich, 484 F.3d 1244, 1254 (10th Cir. 2007).

A Fourth Amendment search occurs either where the government, to obtain

information, trespasses on a person’s property or where the government violates a

person’s subjective expectation of privacy that society recognizes as reasonable to

collect information.

Ysasi v. Brown, 3 F.Supp.3d 1088, 1127 (D.N.M. 2014) (emphasis added).

The [Fourth] Amendment establishes a simple baseline, one that for much of our

history formed the exclusive basis for its protections. When “the Government

obtains information by physically intruding” on persons, houses, papers, or effects,

“a ‘search’ within the original meaning of the Fourth Amendment” has

“undoubtedly occurred.” United States v. Jones, 565 U.S. ----,----, n.3, 132 S.Ct.

945, 950–951, n. 3, 181 L.Ed.2d 911 (2012).

* * *

The Fourth Amendment “indicates with some precision the places and things

encompassed by its protection”: persons, houses, papers, and effects. Oliver v.

United States, 466 U.S. 170, 176, 104 S.Ct. 1735, 80 L.3d.2d 214 (1984).

* * *

[W]hen it comes to the Fourth Amendment, the home is first among equals. At the

Amendment’s “very core” stands “the right of a man to retreat into his own home

and there be free from unreasonable governmental intrusion.” Silverman v. United

States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961.)

* * *

We therefore regard the area “immediately surrounding and associated with the

home”—what our cases call the curtilage—as “part of the home itself for Fourth

Amendment purposes.” Oliver, supra, at 180, 104 S.Ct. 1735.

39 Although principles of law, instead of “elements,” are out of place in the “Statement of Elements

and Undisputed Material Facts” section of Movants’ Memorandum, Kendall is responding to what

Movants have set forth there out of concern that the lack of a response may be treated as a

concurrence with the Movants’ statements of legal principles.

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* * *

This area around the home is “intimately linked to the home, both physically and

psychologically,” and is where “privacy expectations are most heightened.”

California v. Ciraolo, 476 U.S. 207, 213, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986).

Florida v. Jardines, 133 S.Ct. 1409, 1414–15 (2013).

Movants also state as follows under the heading “elements” for qualified immunity (which

will be treated by Kendall as additional “elements” for purposes of DUCivR 56-1(c)(2)):

The Fourth Amendment permits warrantless entry on property where there are

exigent circumstances. (This is Movants’ paraphrase, not a direct quotation.) Citing

United States v. Najar,451 F.3d, 710, 718 (10th Cir. 2006).

Kendall disagrees that is a correct statement of the applicable legal principle insofar as it

is incomplete and misleading because it fails to note (1) the essential requirement that, for one to

rely on an “exigent circumstances” justification for engaging in a search without a warrant or

consent, there must be reasonable cause to believe there is an association between the particular

property to be searched and the emergency giving rise to the perceived necessity of conducting a

search; and (2) exigent circumstances cannot justify a warrantless entry on property if the officer

conducting the search created the exigency. The correct statements of the applicable legal principle

relative to the requirement of a reasonable belief concerning a nexus between the property to be

searched and the perceived emergency if exigent circumstances are to serve as a justification for a

search without a warrant or consent are as follows:

The critical element in a reasonable search is . . . that there is reasonable cause to

believe that the specific “thing” to be searched for and seized are located on the

property to which entry is sought.

Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978).

[O]ur test [for a warrantless search where circumstances pose a significant risk to

the safety of an officer or third party] is now two-fold, whether (1) the officers have

an objectively reasonable basis to believe there is an immediate need to protect the

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lives or safety of themselves or others, and (2) the manner and scope of the search

is reasonable (a modification of our former third prong).

United States v. Najar, 451 F.3d 710, 718 (10th Cir. 2006). (The Court in Najar noted that

“Sgt. Brown did not attempt to search any place beyond the locations where a victim

might likely be found. The officers confined the search to only those places inside the

home where an emergency would reasonably be associated.” 451 F.3d at 720 (emphasis

added).)

To satisfy the first prong of the Najar test, the government must show the officers

reasonably believed a person inside the home was in immediate need of aid or

protection. . . . The government must also show that the manner and scope of the

search was reasonable. [Citation omitted.] To satisfy this requirement, the

government must show the officers “confined the search to only those places

inside the home where an emergency would reasonably be associated.”

[Citation omitted.]

United States v. Gambino-Zavala, 539 F.3d 1221, 1225–26 (10th Cir. 2008) (emphasis added).

In order for a search warrant of a residence to be lawful, it must be supported by

probable cause. “‘Probable cause undoubtedly requires a nexus between suspected

criminal activity and the place to be searched.’”

State of Utah v. Vasquez-Marquez, 2009 UT App 14, ¶ 5, 204 P.3d 178 (emphasis added).

Whether there had to be probable cause justifying a warrant had there been time to obtain

one, or whether the “emergency aid” doctrine applied, for a warrantless, non-consensual search to

have been valid, there must have been “some reasonable basis to associate the place searched with

the emergency.” Salt Lake City v. Davidson, 2000 UT App 12, ¶ 15, 994 P.2d 1283 (citation

omitted).

Because this reasonable basis must approximate probable cause and is used to

justify abrogation of Fourth Amendment rights, emergency aid searches should be

“‘strictly circumscribed by [circumstances] which justify its initiation.’”

Id. (citing Mincey v. Arizona, 437 U.S. 385, 393 (1978)).

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2. Movants’ Statement of “Undisputed Material Facts” Under Officer

Olsen’s Entry Into Kendall’s Backyard - Qualified Immunity for

Kendall’s Claims Under 42 U.S.C. § 198340 and Kendall’s

Responses41

1. On June 18, 2014, the SLCPD responded to a call that a three-year-old child was missing from

his home.

Response: Disputed.

The mother of K.H. called 911 because she could not find her son. Horman Depo., 18:14–

19:15. She did not know that he was missing “from his home”. The dispatcher simply said “missing

three-year-old.” Edmundson Depo., 18:11–16. The first arriving police officers, Everett and

Edmundson, after speaking with Ms. Horman, did not first search outside the house; rather, they

initially searched part of the Horman family home for K.H. Horman Depo., 19:23–20:24;

Edmundson Depo., 18:21–21:4.

K.H., the “missing” child, may have been either two or three years old. At her deposition

on July 6, 2016 (just over two years since the search for the boy and the killing of Geist), K.H.’s

mother, Elise Horman, stated he was, at the time of the deposition, four years of age (making him

two years old on the day he went missing, unless his birthday is between June 18 and July 6.).

Horman Depo., 3:24–4:2. Everett said he was two or three years old when he was reported missing.

Everett Depo., 11:8–9. Olsen said he was three years old. Olsen Depo., 45:9; Exhibit “1” to Olsen

40 Again, in utter violation of DUCivR 56-1(b)(C) (“Each asserted fact must be presented in an

individually numbered paragraph . . .”), Movants have added factual assertions in footnotes to the

section of their Memorandum entitled “Undisputed Material Facts.” Kendall will not respond to

those footnotes. 41 Under these sections, Movant’s purported undisputed facts are numbered as Movants have

numbered them, then they are followed by Kendall’s responses.

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Depo., page 3 of 18, dated June 18, 2014 (“While assisting in the search for a 3 year-old boy, I

shot and killed a dog at the listed address.”); Exhibit “6” to Olsen Depo. (“This is a picture of

[redacted] (3 years old) who went missing from 2511 South Fillmore at 3:15 today.”); Edmundson

Depo., 17:6–7 (“Q: You understood he was about three years of age? A: Yes.”).

2. The initial responding officers spoke with the family and checked the home, but did not locate

the boy.

Response: Disputed.

The initial responding officers, Everett and Edmundson, spoke only with the mother, Elise

Horman, not “the family.” Edmundson Depo., 19:25.

Also disputed is the assertion that the initial responding officers “checked” the home, if

“checked” is taken to mean a thorough, competent, reasonable search. None of the initial

responding officers thoroughly checked the home. Pregman only checked the child’s bedroom then

“felt it kind of important at this point [when Edmundson arrived] to kind of leave the home after

doing that search of the bedroom . . . to leave the home and look for the child in the neighborhood.”

Deposition of George Stephen Pregman (“Pregman Depo.”), excerpts of which are Exhibit “9” to

Anderson Decl., 14:13–15:25. Edmundson terminated his search downstairs, where K.H. was later

found sleeping on the floor, after he briefly glanced around and talked to Ms. Horman. Edmundson

Depo., 27:15–29:1. Edmundson left it to Everett to determine whether the boy was still missing.

Edmundson Depo., 36:13–19. Everett saw the box behind which K.H. was later found sleeping,

but he did not move it. Everett Depo., 19:12–20:9. Had he moved the box or looked behind it,

Everett would have found the boy. Everett Depo., 21:1–15; Edmundson Depo., 60:8–61:25, 66:2–

5. Later, after Geist was killed, Detective Glen Davis readily found K.H. when he went downstairs

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and moved a cushion, an empty box, and “stuff.” Davis Depo., 27:21–29:4. For Olsen, the

negligent search for K.H. in his home is a “very sore subject.” Olsen Depo., 103:4–104:1.

3. Officers also spoke with a relative that lived next door and confirmed that the child was not

there.

Response: Disputed.

One officer, Edmundson, went next door to the Horman home and spoke with someone;

he doesn’t know if he spoke with Ms. Horman’s sister. Edmundson Depo., 29:2–13.

4. Additional officers responded to the scene and began to canvas the neighborhood.

Response: Disputed.

Defendants use the word “canvas” as if that would excuse them from liability for an

unreasonable search. The word “canvass” (not “canvas,” which refers to a material (albeit not to a

“material fact”)) means only the asking of questions to, or surveying, people in an area. See

http://dictionary.cambridge.org/us/dictionary/english/canvass.

The record abundantly reflects that the officers “searched” an area that extended several

long blocks from the Horman home, some of them entering enclosed yards without a warrant or

consent.42

42 For instance, Edmundson testified as follows:

Q: And how far away from the boy’s home did your search go?

A: To the end of the block and then over one block and then over one block and

then up probably half a block on Glenmare.

Q: And did you continue to go into backyards –

A: Yes.

Q: -- along the way even if people weren’t home?

A: Yes.

Q: And were those backyards enclosed?

A: Some were, some were not.

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Olsen admitted that “[f]or lack of a better term, yes, you could say search.” Olsen Depo.,

52:17–18.43

5. A canvas [sic] involves knocking on doors and talking to neighbors to see if anyone has seen

the missing child.

Response: Undisputed.

6. It also involves looking in places where a child might have gone, including parks, swimming

pools, and a neighbor’s backyard.

Response: Disputed.

“Canvass” connotes going door-to-door to survey, hand out literature, or persuade people

to support something or somebody, usually in the context of politics or marketing. See, e.g.,

http://dictionary.cambridge.org/us/dictionary/english/canvass.

7. A canvas [sic] is conducted in a systematic way with officers radiating outwards from the place

the child was last seen in a pattern that mirrors the rings of a tree.

Response: Undisputed.

8. Most police officers are aware that the longer a child is missing the less likely the case will

end with a positive result.

Q: And did you go through gates?

A: Yes.

Edmundson Depo., 43:7–19. 43 Q: Right. And – well, the word is also searched with missing children, is it not?

A: Yes.

Q: And Elizabeth Smart was missing, and they were searching for her?

A: Yes.

Olsen Depo., 52:23–53:3.

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Response: Undisputed.

9. Indeed, the chances of a positive outcome decrease dramatically after the first hour.

Response: Undisputed.

10. Officer Olsen arrived on the scene approximately thirty minutes after the family called the

police and reported the child was missing.

Response: Undisputed.

11. Officer Olsen asked if the child’s home had been searched and was told the home had

been searched twice.

Response: Undisputed.

12. Officer Olsen sent a picture of the missing boy to all members of the police department,

together with information obtained from the family that the boy was “non-verbal” and would

not respond if officers simply called his name.

Response: Undisputed.

13. The officers understood this meant they would have to actually look for and visually locate the

missing boy.

Response: Disputed, insofar as the assertion is in terms of what “the officers” understood.

Kendall does not dispute that Olsen, who seeks to justify his killing of Geist after entering

Kendall’s yard, said “you actually had to look” because the boy “could not communicate,” but no

other officer indicated he or she had such an understanding. The Movants’ citation to the Zayas

deposition (24:14–25) does not support the factual assertion. In fact, Zayas said: “He didn’t speak

so we needed to call out and make sure that we searched under things, in things to make contact

with the boy.” Deposition of Yvette Zayas (“Zayas Depo.”), excerpts of which are Exhibit “10” to

Anderson Decl., 24:23–25 (emphasis added).

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14. Officer Olsen worked with Officer Worsencroft to assist in a neighborhood canvas for the boy.

Response: Disputed.

Olsen and Worsencroft teamed up, but engaged in far more than a “neighborhood canvas

[sic] for the boy.” They engaged in a “search” within the meaning of the constitutional protections

against unreasonable searches. See response to paragraph 4 above.

Olsen and Worsencroft searched inside at least two homes, Olsen Depo., 57:18–19, and

went into backyards of homes as they walked along. Olsen Depo., 59:17–19. Olsen entered and

searched the backyard of Kendall’s home. Olsen Depo., 84:1–3, 85:19–86:23.

15. During this canvas one officer would knock on the front door of the house in an attempt to

make contact with the owner to let them know that officers were in the neighborhood looking

for the missing boy and ask if they had seen the child.

Response: Undisputed.

16. The other officer would “clear” the yard.

Response: Undisputed.

17. The officer would attempt to “clear” the yard by viewing from the driveway or over a fence,

but if the officer could not see all areas of the yard and be comfortable the boy was not in the

yard, the officer would enter and check those areas he or she could not see.

Response: Disputed.

The factual assertion refers to “the officer,” whereas the only record, even the statement of

Olsen himself, refers solely to Olsen. (“I would attempt to ‘clear’ a yard by viewing from the

driveway or over a fence, but if I could not see all areas of the yard and be comfortable the boy

was not in the yard, I would enter and check those areas.” Declaration of Brett Olsen, July 13,

2016 (submitted in conjunction with the Movants’ Memorandum) (“Olsen Decl.”), ¶ 11 (emphasis

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added).) Not only has the word “I” been substituted by Movants’ counsel to read “the officer,”

apparently to make it appear that other officers’ practices were the same as Olsen’s, but the words

“he or she” in the factual assertion makes it extremely unclear as to whether the assertion is just

about Olsen and Worsencroft (both men) or about “officers” in general, in which event the factual

assertion is false. Some officers, like Pregman, recognized the constitutional prohibitions against

entering into yards without a warrant or consent and the privacy concerns underlying those limits.

Q: So you knew that, as you were searching for this young boy, you could look from where

you were entitled to be –

A: Yes.

Q: -- to see if he was around, but you weren’t entitled to go over and open a gate and walk

through a backyard without consent or a warrant?

A: Yes. I understand that.

Q: And why is that?

A: Why I understand it or –

Q: No. Why – what’s the reason?

A: Well, people have an expectation of privacy, and people do things to protect their

property from warrantless searches.

Pregman Depo. 34:5–18.

Olsen did not endeavor to “clear” the yard before entering it, which he could have done

had he walked about 100 feet to another vantage point. Olsen Interview, 12:7–8, 139:18–140:16;

Kendall Decl., ¶ 11.

18. Officers Olsen and Worsencroft checked and “cleared” the yards of the four to six houses on

the west side of Filmore Avenue.

Response: Undisputed.

19. They then turned west on Parkway Avenue and reached the Kendall property.

Response: Undisputed.

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20. Kendall’s property is approximately 0.2 miles and a three-minute walk from the missing

child’s residence.

Response: Disputed.

The gate through which Olsen entered the backyard of Kendall’s home is approximately

1/8 of a mile, or about 702 feet—or .132955 miles—from the front door of the Horman residence.

Declaration of Sean Kendall (“Kendall Decl.”), attached hereto as Exhibit “B”, ¶ 12. The only

reference to a “three-minute walk” is in Google Maps, without any reference to whether that is the

walking time for an adult or a two-or three-year-old child. Movants make no reference to whom a

“three-minute walk” refers.

21. The Kendall property consists of a house with an enclosed backyard that may be accessed by

three different gates.

Response: Undisputed.

22. One gate had wood lying at the bottom, which appeared to prevent it from being opened.

Response: Disputed.

The most that can be asserted is that, according to Olsen, the wood lying at the bottom appeared

to him to prevent it from being opened.

23. One gate was located to the south of the house and was about three feet tall.

Response: Disputed.

As Movants’ counsel well knows, and as the photograph to which Movants refer in support

of their factual assertion clearly reflects, the gate is obviously far taller than three feet. In fact, the

latch is about three feet from the ground. Exhibit 12 to Slark Declaration.

24. It had a simple latch and may have been open on the day of the canvas.

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Response: Disputed.

Whenever Geist was in the backyard, all three gates were closed. Kendall Decl., ¶ 11.

25. Another gate was located directly to the east of the house and was about five to six feet tall.

Response: Undisputed.

26. Officer Worsencroft went to the front door and began ringing the doorbell or knocking on the

door.

Response: Disputed.

Worsencroft, the sole officer at the front door, only testified that he knocked on the door,

as follows:

A: I went to that where the front door is and walked up either the grass or the stairs

to the front door and knocked, I think, two different times. And I knocked, nothing,

knocked again, then I heard a growling or a bark, and then I heard two shots from

a gun.

Worsencroft Depo., 37:25–38:5.

27. Officer Olsen walked up the drive to the gate that was directly east of the house.

Response: Undisputed.

28. That gate had a latch that was positioned approximately three feet to three and a half feet from

the ground.

Response: Undisputed.

29. The gate was not locked and Officer Olsen recalls the gate was easy to open.

Response: Disputed.

The gate may have been easy for Olsen to open, but a toddler probably could not have gone

through the gate. Worsencroft did not believe the young boy who was missing could have gone

through the gate. Worsencroft Depo., 74:8–11 (“Q: Do you remember it crossing your mind that

there’s no way that this young toddler could have gone through that gate? A: Himself, probably

not . . . “)

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30. Officer Olsen looked over the gate, but Officer Olsen’s view of the entire yard was obstructed

by the house and the garage.

Response: Disputed.

Officer Olsen’s view of the “entire” yard was not obstructed; it was only partially

obstructed from where he looked over one of the three gates. Even from there, he could see “the

majority of the backyard.” Olsen Depo., 71:10–12.

Had Olsen looked over the other two gates, and had he also looked over the chain-link

fence on the north-east corner of the Kendall backyard, he could have seen—that is, he could have

“cleared”—the entire backyard without ever entering it. Kendall Decl., ¶ 15. To walk along the

outside of the house and backyard from one gate, to the next, and to the next would require walking

approximately one hundred feet. Kendall Decl., Exhibit “2”, ¶ 11.

Even Olsen has admitted that if he had simply walked around and looked over the gates

and fence, he could have seen the entire backyard. However, he chose to enter the backyard instead

of walking to the various vantage points where he could have seen the entire backyard. He stated,

“I guess I could have gone all the way around and looked over, but I saw that the gate was right

there, and it was a very easy to open gate . . .” Olsen Interview”, 12:7–8. See also Olsen Depo.,

139:18–140:16.

Not only did Olsen not go to those places where, together, he could see the entire backyard,

he did not “do anything to call for a dog or determine . . . whether a dog was present.” Olsen Depo.,

80:25–81:2.

31. After waiting a few seconds by the gate and hearing that Officer Worsencroft was not receiving

a response, Officer Olsen entered Kendall’s backyard.

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Response: Disputed.

Olsen’s account is not credible. Despite Olsen’s testimony that he may have heard a

doorbell, Olsen Depo., 70:2–3, Worsencroft made it clear he had only knocked on the front door

of Kendall’s home. Worsencroft Depo., 37:25–38:5.

Olsen testified, inconceivably, that he could hear “either the doorbell or the knocking” from

where he was standing at the gate east of the house. Olsen Depo., 69:19–71:5.

At another time, Olsen testified, inconsistently, that Worsencroft “was ringing the doorbell,

knocking too.” Olsen Interview, 11:28–12:1. And he said he could “hear” the doorbell ringing

and knocking, id., which is impossible. Kendall Decl., ¶ 14.

The doors to the house were closed, Olsen Depo., 70:13–15, and he was a long way from

the front door, with the house and part of the adjoining yard in between Olsen at the gate and

Worsencroft at the front door. Olsen is not telling the truth: One cannot stand at the gate where

Olsen said he was standing and hear a person knocking, let alone pounding hard, on the front door.

Kendall Decl., ¶ 14 and the referenced video.

Even according to Worsencroft, Olsen had actually entered the backyard before

Worsencroft had an opportunity to speak to someone if someone had been in the house.

Worsencroft Depo., 57:4–7.

If Olsen was not yet in the backyard and was, as he has testified, by the gate to the east of

Kendall’s home, it would have been impossible for Olsen to hear the knocking on the door, unless

he was perhaps using a jackhammer. See Kendall Decl. ¶ 14.

Worsencroft had only knocked once or twice when he heard Geist bark and the shots fired.

Worsencroft Depo., 57:1–3. If, as Worsencroft testified, he heard Geist barking and being shot

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while he was knocking on the door, and if, as Olsen has stated twice, he had been in the yard for

about 30 seconds before encountering Geist, Olsen Decl., ¶ 25, it appears impossible, and at least

very unlikely, that Olsen waited to enter the property until it was evident that Worsencroft was not

able to make contact with anybody in the home. That conclusion is rendered certain by the

materially different testimony Olsen provided during the Internal Affairs interview, where he said

he was “in that backyard checking the things before that dog noticed [him] back there” for “[a]t

least a minute to a minute and a half”—“yeah it was about a minute and a half.” Olsen Interview,

9:25–10:1. In other words, since Worsencroft had knocked only once or twice when he heard Geist

bark and heard the gun shots, Olsen must have already been searching around the yard before

Worsencroft had any chance to speak with a resident, had one been at home, to obtain consent for

the search.

32. Officer Olsen walked to the south-west corner and checked the area behind the home.

Response: Undisputed.

33. He then walked to the south-east area and checked the area obscured by the garage.

Response: Disputed.

There was no area of the backyard obscured by the garage had Olsen, from outside the

backyard, looked over the gates and the chain-link fence. To say that an area of Kendall’s backyard

was obscured by the garage is like saying a telephone pole obscures the view because one does not

bother to move to see things from another perspective. Olsen actually allowed the garage to

obscure his view because he did not move to a location where his view would not be obscured.

Had Olsen looked over the other two gates, which would have involved walking about one hundred

feet, Kendall Decl., ¶ 11, and had he also looked over the chain-link fence on the north-east corner

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of the Kendall backyard, he could have seen—that is, he could have “cleared”—the entire backyard

without ever entering it. Kendall Decl., ¶ 15.

34. He then walked over to the shed and pulled opened [sic] the shed door (that may have been

slightly ajar) and checked inside.

Response: Undisputed, but does not establish whether the door was “ajar”.

35. Finally, Officer Olsen checked the area to the north of the shed.

Response: Undisputed.

36. Officer Olsen estimates it took him approximately thirty seconds to check these areas for the

missing boy.

Response: Disputed. Once again, Olsen’s inconsistent testimony itself provides the disputed

material facts. During his Internal Affairs interview, Olsen said it was “[a]t least about a minute to

a minute and half,” Olsen Interview, 9:25–27, and that “it was about a minute and a half.” Id.,

10:1.

3. Kendall’s Statement of Additional Material Facts

1. Kendall’s backyard was the curtilage to his home, which SLCPD policy recognizes

is entitled to the same protections against unreasonable searches and seizures as a home. Olsen

Depo., 115:5–12.44

44 Salt Lake City Police Department written policy III-730, entitled “Search and Seizure,” at all

material times, provided as follows:

Search of Open Fields — Curtilage

Individuals maintain an expectation of privacy in the curtilage of their home or

dwelling. The curtilage is treated as part of the home for 4th Amendment purposes. The

same 4th Amendment protections that apply to a person’s home or dwelling apply to

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2. Olsen was familiar with that policy and understands that “curtilage is property that

is extended the same legal rights as a home. It’s basically part of the home.” Olsen Depo., 115:13–

15, 11:4–21, 117:12–118:16, 124:11–17. He also understood that a shed that was in the backyard

would be considered part of the curtilage. Olsen Depo., 118:2–8.

3. Olsen knew that if there is no warrant or consent to search a residence, including

the curtilage, there must be a reasonable belief that there is a connection between the specific

property to be searched and the emergency. Olsen Depo., 11:22–12:8, 12:14–25, 13:14–25, 44:18–

45:5, 53:17–21, 24. Pregman knew there must be such a connection as well. Pregman Depo., 36:6–

15.

4. The SLCPD written policy relating to searches without a warrant under exigent

circumstances was, and is, materially and dangerously incomplete in that it omits the vital

requirement that, for a search of private property, particularly the search of a home or its curtilage,

there must be reasonable cause to believe that there is an association between the property to be

searched and the person believed to be at risk of harm, if such a risk is the “exigent circumstance”

justifying the absence of a warrant. Worsencroft Depo., 81:19–83:5; Exhibit “3”. Worsencroft

made clear that the SLCPD written policy has misled him about the constitutional requirement of

the curtilage. In determining whether an area is within the curtilage of a home,

consideration is given to the following four factors:

The area’s proximity to the main dwelling;

Whether the area is included within an enclosure surrounding the home;

The nature of the uses to which the area is put; and

The steps taken by the resident to protect the area from observation.

Olsen Depo., 115:5–15, Exhibit “3”.

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searching without a warrant on the basis of exigent circumstances. Worsencroft Depo., 84:4–

85:16.

5. In fact, one officer involved in the search for K.H. believes the written policy of the

SLCPD relating to warrantless searches based on exigent circumstances—which omits any

reference to the need for a reasonable belief that there is a connection between the property to be

searched and the emergency giving rise to the need for the search or a person thought to be at risk

of harm—allows police officers to walk into and rifle through homes and yards within whatever

distance a missing child might have traveled. Edmundson Depo., 45:13–48:22. Olsen, Purvis, and

Worsencroft had the same belief. Olsen Depo., 90:4–9; Purvis Depo., 59:23–60:10; and

Worsencroft Depo., 81:19–85:16.

6. No one, including Olsen, had any reason to believe, nor was there any reason to

believe, there was any connection or association between (1) Kendall’s residence generally, or his

backyard specifically, and (2) K.H. or any of the circumstances surrounding the perceived fact that

he was missing. Rather, the only justification provided by any officer of the SLCPD for warrantless

and non-consensual entries upon and searches of private properties, including Kendall’s backyard,

was that the properties were within a spatial proximity to the Horman house within which K.H.

was thought to be able to walk, and the properties might have been accessible to K.H. Olsen Depo.,

75:1–76:24, 79:6–14, 79:21–80:16, 153:12–22; Purvis Depo., 55:5–56:18, 79:24–80:4 (“Q: In

fact, there was no connection whatsoever between Sean Kendall’s home and the backyard and the

perceived emergency, other than the fact that that home was located about an eighth of a mile from

the Filmore home. A: Correct.”); Worsencroft Depo., 66:6–12, 66:25–67:15; Deposition of

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Christopher Johnson (“Johnson Depo.”), excerpts of which are Exhibit “11” to Anderson Decl.,

20:2–15.45

4. Kendall’s Statement of Additional Elements and Material Facts

Movants have failed to set forth the elements of an unconstitutional search or the elements

of Kendall’s § 1983 claim that Olsen, Purvis, and SLCC violated Kendall’s constitutional

protections against the warrantless, non-consensual search of his backyard.

a. Elements and Material Facts for Unconstitutional Search

The following are the elements of Kendall’s claim that Olsen, Purvis, and SLCC

engaged in, or are otherwise liable for, an unconstitutional search of his backyard and the facts

establishing the elements are met by Kendall:

45 Q: Did you have any particular reason to believe that that shed had anything

to do with the missing boy or the circumstances surrounding him being

missing?

A: I felt that it was a very easy place for a boy to wander into. That was my

– that was the – that was my assumption.

Olsen Depo., 89:9–14.

Q: You opened up the door to the shed in the backyard, right?

A: Yes.

Q: And you felt you were entitled to do that without consent or a warrant?

A: Yes.

Q: And without cause for believing there was any connection between that

shed and the young boy missing, other than the fact of spatial proximity and

access?

A: Yes.

Olsen Depo., 119:18–120:3.

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A. There must have been a “search” at Kendall’s home (including the curtilage) or in

another place where Kendall had an expectation of privacy and where that

expectation was objectively reasonable. United States v. Jones, 132 S.Ct. 945, 950

(2012); Katz v. United States, 389 U.S. 347, 351 (1967).

A Fourth Amendment search occurs either where the government, to obtain

information, trespasses on a person’s property or where the government violates a

person’s subjective expectation of privacy that society recognizes as reasonable to

collect information.

Ysasi v. Brown, 3 F.Supp.3d 1088, 1127 (D.N.M. 2014) (citing United States v. Jones, 132 S.Ct.

945, 947 (2012).

When “the Government obtains information by physically intruding” on persons,

houses, papers, or effects, “a ‘search’ within the original meaning of the Fourth

Amendment” has undoubtedly occurred.’”

Florida v. Jardines, 133 S.Ct. 1414 (quoting United States v. Jones, 132 S.Ct. at 950 n.3).

There is no doubt, however, that a citizen has a reasonable expectation of privacy,

and a particularly strong one, in his own home. The “chief evil” from which the

Fourth Amendment protects citizens is unwanted police entry into the home, and

the “principal protection” is “the Fourth Amendment’s warrant requirement.”

United States v. Christy, 785 F.Supp.2d 1004, 1025 (D.N.M. 2011) (quoting United States v.

Thompson, 524 F.3d 1126, 1132 (10th Cir. 2008)).

“At the very core” of the Fourth Amendment “stands the right of a man to retreat

into his own home and there be free from unreasonable governmental intrusion.”

Kyllo v. United States, 533 U.S. 27, 31 (2001) (quoting Silverman v. United States, 445 U.S. 573,

586 (1980).

Searches and seizures inside a home without a warrant are presumptively unreasonable.

Payton v. New York, 445 U.S. 573, 386 (1980).

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Facts demonstrating that Kendall has met that element:

1. Purvis instructed Olsen to look “everywhere” for the supposedly missing boy.

Olsen Depo., 55:25–56:8. Purvis expected that Olsen would enter yards if he could not see the

entirety of the yards, even if there were no warrant, no consent, and no connection between the

specific property and the perceived emergency. Purvis Depo., 73:23–74:21. Olsen understood

Purvis to mean that he was to look “inside homes” and “inside enclosed yards,” “[b]ased on

consent or exigency or whatever.” Olsen Depo., 56:2–13, 112:23–114:8. Worsencroft had the same

understanding of Purvis’s instruction. Worsencroft Depo., 24:19–25:4.

2. The written policy of the SLCPD regarding warrantless searches based on exigent

circumstances is woefully, and dangerously, incomplete and misleading insofar as it entirely omits

any reference to the requirement that before a police officer can engage in a warrantless search

based on exigent circumstances he/she must have at least a reasonable cause to believe there is an

association between the property to be searched and the perceived emergency giving rise to the

need for a search. Worsencroft Depo., 81:19–83:5; Exhibit “3”. Worsencroft was misled by the

SLCPD written policy; as a result, he did not understand the restriction on his ability to search

without a warrant on the basis of exigent circumstances if he did not have cause to believe there

was a connection between the property to be searched and the emergency. Worsencroft Depo.,

84:4–85:16.

3. Olsen opened the gate to Kendall’s backyard, walked around the yard, opened and

searched a shed in the yard, and then shot and killed Kendall’s beloved dog Geist because he

barked and ran toward Olsen after Olsen started running. Olsen Depo., 84:1–87:18.

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4. Kendall’s backyard was adjacent to the home where he resided. Kendall Decl.,

Exhibits “1” through “6”; ¶ 5. It was entirely enclosed with a tall fence, Kendall Decl., ¶ 8, and the

house, with three secure gates. Kendall Decl., ¶ 6.

5. The fence of the backyard protected the backyard from observation by people

passing by the residence. A portion of the fence is chain link, but opaque slats were inserted into

the entire length of that portion to prevent people outside the yard from seeing into the yard.

Kendall Decl., ¶ 7.

6. Kendall had an expectation of privacy in his home, his backyard, the shed in his

backyard, and throughout his entire residence. He chose to move into that residence, in part,

because of the tall fence and enclosed backyard. Those characteristics were important to him so

he could (a) privately enjoy activities in his backyard and (b) provide an area for Geist, who had

previously joined his family, that was secured from Geist getting loose and secured from anyone

harassing, harming, or interfering with Geist. Kendall Decl., ¶ 9.

7. Because the backyard of Kendall’s home was enclosed with a tall fence that

prevented passersby from seeing into the backyard, he expected that his activities in the backyard

were private at all times. He conducted himself in the backyard of his residence, and kept Geist

there much of the time, in accordance with his expectation that the backyard was private. Kendall

Decl., ¶ 10.

B. There must have been no warrant or consent for the search of Kendall’s backyard.

Searches conducted pursuant to consent constitute one exception to the Fourth

Amendment’s search-warrant and probable-cause requirements. See Schneckloth v.

Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2014, 36 L.Ed.2d 854 (1973). When an

individual consents to a police search, and the consent is “freely and voluntarily

given,” the search does not implicate the Fourth Amendment. United States v. Peña,

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143 F.3d 1363, 1366 (10th Cir. 1998) (quoting Schneckloth v. Bustamonte, 412 U.S.

at 219, 93 S.Ct. 2041.)

Ysasi v. Brown, 3 F.Supp.3d at 1139.

Facts demonstrating that Kendall has met that element:

1. No one, including Olsen, obtained a warrant or consent to search the curtilage of

Kendall’s residence. Olsen Depo., 77:22–78:16, 89:15–20, 119:18–23. City’s Response to Request

for Admissions No. 2, Exhibit “12” to Anderson Decl. (“The City also admits that Officer Olsen

did not have a warrant to enter the backyard of the property at 2465 South 1500 East prior to

entering that property.”) Defendants Olsen, Purvis, Everett, Edmundson, and Pregman’s

Responses to Plaintiff’s First Set of Requests for Admissions No. 1, Exhibit “13” to Anderson

Decl. (“Officer Olsen admits that his entry into the backyard at 2465 South 1500 East was without

express permission or consent of Kendall or an owner or resident of that property and without a

warrant.”)

C. There must have been no reasonable cause to believe there was a connection between

Kendall’s backyard and K.H. or the circumstances of him being missing.

A search requires a search warrant unless “a few specifically established and well-

delineated exceptions” apply. Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 1716 (2009).

“One exception to the warrant requirement is when police reasonably

believe an emergency exists that makes it infeasible to obtain a warrant.”

United States v. Gambino-Zavala, 539 F.3d 1221, 1225 (10th Cir. 2008).

The government bears the burden of proving the exigency exception to the

warrant requirement applies.” United States v. Najar, 451 F.3d 710, 717

(10th Cir. 2006). “That burden is especially heavy when the exception must

justify the warrantless entry of a home.” United States v. Najar, 451 F3d at

717 (citation omitted). Generally, a warrantless entry under the exigent-

circumstances exception requires probable cause and exigent

circumstances. See Kirk v. Louisiana, 536 U.S. 635, 638, 122 S.Ct. 2458,

153 L.Ed.2d 599 (2002); Manzanares v. Higdon, 575 F.3d 1135, 1142–43

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(10th Cir. 2009). The Tenth Circuit, however, appears to have recognized a

subset of exigent-circumstances cases—what the Court refers to as

“emergency-aid” cases—that do not require probable cause. See United

States v. Najar, No. CR 03–0735, 2004 WL 3426123, at *6 (D.N.M. Sept.

3, 2004) (Browning, J.), aff’d, 451 F.3d 710 (10th Cir. 2006) (“For probable

cause in the usual [evidence-of-crime] sense not to be needed, the police

must be responding to a true emergency rather than a crime, and the police

must reasonably believe a person inside needs immediate assistance, and

entry is needed to protect or preserve life, or to avoid serious injury.”)

(alteration original), aff’d, 451 F.3d 710 (10th Cir. 2006).

Wilson v. Jara, 866 F.Supp.2d 1270, 1294 (D.N.M. 2011) (emphasis added).

For exigent circumstances to justify a warrantless search, the officers must have “an

objectively reasonable basis to believe there is an immediate need to protect the lives or safety of

… others” and the manner and scope of the search must be reasonable. United States v. Najar, 451

F.3d 710, 718 (10th Cir. 2006). To meet that test, the following connections between the property

to be searched and the perceived emergency must be shown by the government:

[T]he government must show the officers reasonably believed a person

inside the home was in immediate need of aid or protection.

United States v. Gambino-Zavala, 539 F.3d at 1225.

[T]he government must show the officers “confined the search to only those

places inside the home where an emergency would reasonably be

associated.”

Id. at 1226 (quoting Najar, 451 F.3d at 718).

Facts demonstrating that Kendall has met that element:

No one had any belief, or any reason to believe, that there was any connection between

Kendall’s backyard and the supposedly missing boy or the circumstances of him being missing.

See Kendall’s Additional Material Facts, ¶ 6, supra.

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b. Elements and Material Facts for a § 1983 Claim of

Unconstitutional Search

The following are the “two essential elements” to Kendall’s § 1983 claim:

A. Kendall was deprived of a right secured by the Constitution or laws of the United

States. Johnson v. Rodrigues, 293 F.3d 1196, 1202 (10th Cir. 2002).

Facts demonstrating that Kendall has met that element:

See Kendall’s Statement of Additional Elements and Material Facts, supra.

B. Defendants deprived Kendall of the constitutional right while acting under color of

state law. Johnson v. Rodrigues, 293 F.3d 1196, 1202 (10th Cir. 2002).

Facts demonstrating that Kendall has met that element:

1. “The City admits that Officers Olsen, Purvis, Everett, Edmundson, and Pregman

were acting under color of law, and within the scope of their employment, from the beginning of

the June 18, 2014, search of the “Filmore Street home” for a three-year-old boy until the shooting

of Geist.” Salt Lake City Corporation’s Responses to Request for Admissions, ¶ 1.

B. Kendall’s Utah Constitutional Claims

1. Movants’ Statement of Elements and Kendall’s Responses

Again, each element is not stated separately in Movants’ Memorandum, with a “concise

statement of the material facts necessary to meet that element,” as contemplated by DUCivR 56-

1(b) (2)(A) and (B). Kendall will strive to locate “elements” among what is set forth in pages 10–

11 of Movants’ Memorandum and respond.

Among the numerous quotations from various cases in Movants’ Memorandum, at 10–11,

the following appear to be “elements” presented (together, rather than delineating each one) by

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Movants relating to entitlement to monetary relief for a violation of Article I, section 14 of the

Utah Constitution:

A. Article I, section 14 of the Utah Constitution must be self-executing. (Citing Wood v.

Farmington City, 910 F.Supp.2d 1315, 1328 (D. Utah 2012).)

Kendall agrees with that element. It is clearly met. Jensen v. Cunningham, 2011 UT 17, ¶

63, 250 P.3d 465. (“Article I, Section 14 is also self-executing.”)

B. Kendall must have suffered a flagrant violation of his constitutional rights.

“Defendant[s] must have violated ‘clearly established’ constitutional rights ‘of

which a reasonable person would have known.” To be considered clearly

established, “[t]he contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing violates that right.”

Spackman ex rel. Spackman v. Bd. of Educ., 2000 UT 87, ¶22, 16 P.3d 533.

Kendall agrees with that element, so far as it is stated, and contends he has met it. There

need not be “clear precedent on point that specifically recognizes the claimed right and applies it

to analogous facts.” There may be “instances where a defendant’s conduct will be so egregious

and unreasonable that it constitutes a flagrant violation of a constitutional right even in the absence

of controlling precedent.” Jensen v. Cunningham, 2011 UT 17, ¶ 67, 250 P.3d 465.

Facts demonstrating that Kendall has met that element:

The same facts demonstrate that Kendall has suffered a flagrant violation of his

constitutional rights as set forth above relative to his § 1983 claim under the Fourth Amendment

and relative to the unavailability of the defense of qualified immunity. See supra, sections I. A. 2–

4.

C. Kendall must establish that existing remedies do not redress his injuries.

Kendall agrees with that element.

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Facts demonstrating that Kendall has met that element:

There are no legislative remedies provided to Kendall for the violation of Art. I, section 14

of the Utah Constitution. As in Bott v. Deland, 922 P.2d 732 (Utah 1996), it is possible that there

could be a no-cause-of-action verdict on Kendall’s federal claims, but a verdict on the state

constitutional claims. It will not be known until trial whether alternative claims will redress

Kendall’s injuries. Movants have not provided any facts relating to that element.

D. Kendall must establish that equitable relief, such as an injunction, was and is wholly

inadequate to protect his rights or redress his injuries. Id. ¶ 25.

Kendall agrees with that element.

Facts demonstrating that Kendall has met that element:

Again, Movants have not provided any facts relating to that element. It is abundantly clear

that equitable relief, such as an injunction, would be wholly inadequate to protect Kendall’s rights

or redress his injuries. Geist is dead as a result of Olsen’s trespass into Kendall’s yard and his

unnecessary shooting of Geist, Olsen Depo., 26:20–23, 94:3–19; Kendall has suffered tremendous

injuries, Kendall Declaration, ¶ 16; and the clock cannot be run back on the gross violations of his

constitutional rights.

2. Kendall’s Responses to Movants’ Statement of “Undisputed Material

Facts”

Movants have stated for their “undisputed material facts” relating to Kendall’s claims

under the Utah Constitution that “[t]he same facts that apply to Kendall’s claim that it was a

violation of the Fourth Amendment for Officer Olsen to enter his backyard to look for the missing

boy . . . apply here.” Movants’ Memorandum at 11.

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The same facts set forth by Kendall in support of his claims under the Fourth Amendment

apply here, demonstrating that there are genuine issues of material facts precluding summary

judgment. See supra, sections I. A. 2–4.

C. Kendall’s State Law Claims for Trespass and Negligence

1. Movants’ Statements of Elements and Kendall’s Responses

A. Movants offer the following as the elements of a claim for trespass:

[T]here must be a physical invasion of land that is done without legal justification

or privilege.

Kendall agrees with that element, so far as it goes. However, as to Purvis, the more

instructive and relevant statement of the elements is as follows:

A person is liable for trespass when, without permission, he “intentionally ‘enters

land in the possession of [another], or causes a thing or a third person to do so.’”

Purkey v. Roberts, 2012 UT App 241, ¶ 17, 285 P.3d 1242 (quoting Carter v. Done, 2012 UT App

72, ¶ 17, 276 P.3d 1127) (emphasis added).

Movants do not set forth any of the elements of a negligence claim. Those elements are

set forth in Coates v. Wells Fargo Home Mortgage, Inc., 2011 WL 1232344, *3 (D. Utah 2011)

(citing to Thurston v. Workers Comp. Fund of Utah, 2003 UT App 438, ¶ 12, 83 P.3d 391, which

quoted Hunsaker v. State, 870 P.2d 893, 897 (Utah 1993)), as follows: “To prevail on a negligence

claim, Plaintiff must establish four essential elements: (1) that Defendant owed Plaintiff a duty,

(2) that Defendant breached that duty, (3) that the breach of duty was the proximate cause of

Plaintiff’s injury, and (4) that Plaintiff in fact suffered injuries or damages.”

1. Movants owed Kendall a duty. Government “officials can be liable for the acts of third

parties where those officials ‘created the danger’ that caused the harm.” Marino v. Mayger, 118

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Fed.Appx. 393, 401 (10th Cir. 2004), citing Armijo v. Wagon Mound Pub. Schs., 159 F.3d 1253,

1260 (10th Cir. 1998).

“[A] duty to protect arises where a police officer takes affirmative steps that increase the

risk of danger to an individual.” Munger v. City of Glasgow Police Dept., 227 F.3d 1083, 1088

(9th Cir. 2000).

Our cases have identified several factors relevant to determining whether a

defendant owes a duty to a plaintiff, including: (1) whether the defendant’s

allegedly tortious conduct consists of an affirmative act or merely an omission . . .

(2) the legal relationship of the parties; (3) the foreseeability or likelihood of injury;

(4) “public policy as to which party can best bear the loss occasioned by the injury;”

and (5) “other general policy considerations.”

B.R. ex rel. Jeffs v. West, 2012 UT 11, ¶ 5, 275 P.3d 228 (citations omitted).

The facts establishing this element are set forth in detail supra, sections I. A. 2–4,

including those facts showing that (1) Purvis instructed Olsen, Worsencroft and others to violate

the constitutional prohibitions against unreasonable searches, (2) Olsen entered and searched the

curtilage of Kendall’s home without any belief, or reason to believe, there was any connection

between the property searched and the missing boy, and (3) the SLCPD misled its officers by its

negligent and unconstitutional policy that stated police could engage in warrantless searches if

exigent circumstances existed, such as a risk of harm to someone, without reflecting the clearly

established requirement that there must be reasonable cause to believe that there is a connection

between the property to be searched and the emergency.

2. Olsen and Purvis breached that duty, for which the City is liable under Utah

Code Ann.§ 63G-7-301(2)(i) (previously § 63G-7-301(4)), which waives immunity from suit of

each governmental entity as to any injury proximately caused by a negligent act or omission of an

employee committed within the scope of employment. (The pending Motion for Leave to File a

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Second Amended Complaint is intended to make clear that if the individual defendants are not to

be held accountable individually for their negligence, then the City should be held accountable, as

contemplated by the Governmental Immunity Act of Utah.)

The facts establishing this element are set forth in detail supra, sections I. A. 2–4,

including those facts showing that since Olsen and Purvis intended that enclosed yards of homes

in the area, including Kendall’s, would be searched without a warrant, without consent, and

without there being any reason to believe there was a connection between the yards and the missing

boy, they both owed Kendall a duty to refrain from entering, or allowing entry upon, his property

and that duty was breached.

3. It was foreseeable to Purvis and Olsen that Kendall’s constitutional right to be

free from a warrantless, unreasonable search would be violated as a result of the breach of

their duties owing to Kendall.

The facts establishing this element are set forth in detail supra, sections I. A. 2–4.

4. Kendall suffered substantial damages and injury as a result of the breach by

Purvis, Olsen, and SLCC of their duties owing to Kendall.

The facts establishing this element are set forth in detail supra, sections I. A. 2–4, and

infra, sections II. A. 2–3. Kendall has suffered significant injuries and damages as a result of the

unnecessary killing of Geist. Kendall Decl., ¶ 16; Shea Decl., ¶¶ 13–14.

Movants focus on the Governmental Immunity Act of Utah (“GIA”), endeavoring to escape

accountability for the trespass upon Kendall’s property and negligence in creating the

circumstances, through their wrongful acts, that led to the killing of Geist. However, because the

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common law provided for trespass claims against governmental employees,46 Kendall cannot be

deprived by the GIA of his remedy for the trespass by Olsen and Purvis. The same holds true for

Kendall’s negligence claims. Since Olsen and Purvis would have been liable for their negligence

under common law,47 Kendall must have some remedy for the individual defendants’ negligence–

either from them individually, or from the City, pursuant to Utah Code Ann. § 63G-7-301(2)(i)

(previously § 63G-7-301(4)), which can be accommodated if the Court grants Kendall’s Motion

for Leave to File a Second Amended Complaint.

2. Kendall’s Response to Movants’ Statement of “Undisputed Material Facts”

Movants have not presented the elements of a negligence claim, nor have they treated

separately the trespass and negligence claims. For their “undisputed material facts” relating to the

trespass and negligence claims, Movants have stated that “[t]he same facts that apply to Kendall’s

claim that it was a violation of the Fourth Amendment and a violation of article I, section 14 of the

46 Gillmor v. Salt Lake City, 89 P. 714, 715 (Utah 1907) (if officers committed a trespass “willfully

or maliciously, or even negligently, action should be directed against them for redress of the

wrongs, and not against the City . . . “); Spalding v. Allred, 64 P. 1100, 1102 (Utah 1902) (“[I]f the

officer assumes to levy on or sell the whole property, his act, as against the co-tenant not named

in the writ, is wrongful, and he may be sued for trespass or conversion, as the co-tenant may

elect.”). 47 Ross v. Schackel, 920 P.2d 1159, (Utah 1996) (“An examination of the cases decided by this

court at or about the time of statehood reveals the general rule that public officers and employees

enjoyed no official immunity for negligently performed ministerial acts . . . “). In Day v. State ex

rel. Utah Dept. of Public Safety, 1999 UT 46, ¶ 36, 980 P.2d 1171, the Utah Supreme Court made

clear that the reference point for the protection of remedies against unconstitutional abrogation

was not the time of statehood, but the time of abrogation. It also noted that remedies for negligence

and recklessness against government employees acting in the course and scope of their

employment had been statutorily abrogated in 1983, but, “in lieu of that remedy, one injured by

the negligence or recklessness of a government employee was provided a remedy against the

government agency.” That remedy, now provided by Utah Code Ann. § 63G-7-301(2)(i)

(previously § 63G-7-301(4)), is what Kendall seeks to pursue for the individual defendants’

negligence if leave is granted for him to file a Second Amended Complaint.

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Utah Constitution for Officer Olsen to enter the backyard to look for the missing boy . . . apply

here.” Movants’ Memorandum at 12.

The same facts set forth by Kendall in support of his claims under the Fourth Amendment

and Article I, section 14 of the Utah Constitution for the illegal search by Olsen apply here,

demonstrating genuine issues of material facts, precluding summary judgment. See supra, sections

I. A. 2–4.

II. OFFICER OLSEN’S SEIZURE OF GEIST

A. Qualified Immunity for Kendall’s Claims Under 42 U.S.C. § 1983

1. Movants’ Statements of Elements and Kendall’s Responses

To defeat the claim of qualified immunity with respect to the killing of Geist, the parties

agree that Kendall must show, with the facts viewed in the light most favorable to Kendall, that

the violation of a constitutional right occurred and that the violation was clearly established at the

time of the violation. Phillips v. James, 422 F.3d 1075, 1080 (10th Cir. 2005).

Movants assert that “[t]o satisfy the second prong of the qualified immunity analysis,

Kendall must show the seizure of an aggressive dog that poses an imminent threat of serious bodily

harm violates a clearly established constitutional right.”

Kendall disagrees with that statement of the applicable “element” because it ignores the

fact that the claims of Movants are compellingly disputed by Kendall and, in fact, there is no basis

whatsoever for the factual premises of Movants’ statement. Movants have not stated an “element;”

rather, they have simply begged an ultimate question. The second prong of the qualified immunity

analysis is whether the constitutional right was clearly established at the time of the violation.

Mayfield v. Bethards, 2016 WL 3397503, *2 (10th Cir. 2016).

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2. Movants’ Statement of “Undisputed Material Facts” Under Officer

Olsen’s Seizure of Geist – Qualified Immunity for Kendall’s Claims

Under 42 U.S.C. § 1983 and Kendall’s Responses.

1. Having “cleared” the yard, Officer Olsen went to leave.

Response: Undisputed.

2. He noticed that the shed door had swung open so he returned to the shed and shut the door

firmly to ensure Kendall’s property was left in a secure manner.

Response: Undisputed.

3. Seconds later Geist came from behind the shed charging at Officer Olsen.

Response: Disputed.

Because of his wholly inconsistent testimony on a vital fact relating to the reasonableness

of his killing Geist, Olsen himself has provided a material issue of fact. Geist did not run toward

Olsen until Olsen, on “instinct,” started running. Olsen Depo., 86:16–87:11. Geist simply barked,

making himself known and communicating his concern that Olsen was in Geist’s backyard, Beck

Decl., ¶ 5, and then Olsen started running, Olsen Depo., 86:16–87:11; Olsen Interview, 8:1–4,

provoking Geist to run after him, as almost any dog would do in those circumstances. Beck Decl.,

¶ 9.

Olsen: When I pushed it closed, that’s when I started hearing Geist, and it started

barking very angrily, and so I thought there is a dog back there and so I started

going around here as fast as I could. I wanted to get out of the backyard.

Q: Where did you go?

A: I started running up this way. It was kind of a sideways run because I wanted

to keep an eye on what was coming, and I attempted to go through underneath this

to get out of this gate.

Q: So you – you were running away from the dog?

A: Yes. I started to.

Q: Did you ever learn that’s a good way to keep a dog from coming after you?

A: To run away?

Q: Uh-huh.

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A: It’s just instinct. So as he started charging at me, that’s when I stopped.

Olsen Depo., 86:18–87:11 (emphasis added).48

Olsen’s testimony could not be more clear: He heard Geist bark, then Olsen ran, then Olsen

stopped running when Geist “started charging” at him. That was an incredibly unreasonable thing

for Olsen to do. If there had actually been an exigent circumstance justifying some action against

Geist (which there was not, as is shown below), that exigency was created by Olsen’s reckless

conduct while unconstitutionally in Kendall’s backyard.

“It is a matter of common knowledge and common sense that one should not run from a

barking dog. Just like with many other animals, running provokes dogs to chase.” Beck Decl., ¶ 9.

See also Beck Decl., ¶ 11, Declaration of Shea Kendall (“Shea Decl.”), Exhibit “E” hereto, ¶ 7.

“Running away from a dog provokes—that is, it invites—a dog to run after the person running.”

Shea Decl., ¶ 9.

4. Geist was approximately 20-25 feet away from Officer Olsen when Officer Olsen first saw

Geist.

Response: Undisputed.

5. Geist was a large Weimaraner who exceeded one hundred pounds.

Response: Disputed.

Geist weighed about 90 pounds. Kendall Decl., ¶ 13. Male Weimaraners are commonly 75–85

pounds. http://www.hillspet.com/en/us/dog-breeds/weimaraner.

48 See also Olsen Interview, 8:1–4 (“. . . I got to about here and I started hearing barking, and um,

when I started hearing the barking, I mean I knew it was a dog, so I started to go a little bit

quicker to get out and I got to about here and I looked and saw a dog that was coming back

here, and it was charging at me right here.”). (Emphasis added.)

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6. Geist charged at Officer Olsen in an extremely aggressive fashion.

Response: Disputed.

Geist was not being “aggressive.” He had never before been “aggressive.” Declaration of

Haley Bowen (“Bowen Decl.”, Exhibit “G” hereto, ¶¶ 4, 6–10). Kendall states as follows:

Geist was a friendly and loveable dog his entire life. Geist was never observed to be

aggressive by me, my friends, my family, or anyone involved in the care of Geist.

Kendall Decl., ¶ 13. See, also, Shea Decl., ¶ 10, 11.

“As a breed, Weimaraners are not aggressive. They are, however, recreational barkers.

They will bark for any reason, and for no reason at all. They bark loudly.” Brooks Decl., ¶ 5. See

also Shea Decl., ¶ 5, 6.

Heather Beck has “handled, and worked with, many dogs who were misperceived as being

‘aggressive.’” Beck Decl., ¶ 1. After reviewing many of the materials in this matter (described in

Beck Decl., ¶ 2), she “can strongly say that Geist was acting with an intent to communicate to

Olsen, not with an intent to harm Olsen.” Beck Decl., ¶ 3.49

7. He was growling and barking, his ears were back, and his teeth were bared.

Response: Disputed (see response to prior paragraph), but even if true, it is immaterial.

49 Beck addresses the characterization of Geist as “aggressive” as follows:

By the officers’ and Ms. Clinch’s description of the incident, Geist’s intention was not to

cause harm to anyone. A dog who intends to harm someone is silent. I have been mauled

once by a dog, a 110-pound Doberman Pinscher. It came off leash and went straight for

me, without a bark, a growl, or a snarl. This is the only truly aggressive dog I have

encountered in over twenty years dealing with dogs that are inappropriately described as

“aggressive.” If Geist wanted to attack Olsen, Geist would have been silent and Olsen never

would have heard Geist coming.

Beck Decl., ¶ 4.

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Never before this lawsuit was filed—not in his police report nor during his internal affairs

interview—did Olsen ever mention growling, ears being back, or teeth being bared. See response

to paragraph 8 below. However, even if he had mentioned that those things happened, other than

after this lawsuit was filed, it is irrelevant because a dog’s barking, growling, snarling, having its

ears back, and baring its teeth is not indicative whatsoever of an attack or imminent attack,

particularly when the dog’s movement is not restricted. Beck Decl., ¶¶ 5, 6, 7. If Geist was

growling and barking, with his ears back and his teeth bared, that was “normal for a dog in those

circumstances, and did not indicate Geist was going to bite Olsen.” Brooks Decl., ¶ 10. “Dogs are

creatures that want to make it through the day with as little conflict as possible. They use body

movement, barking, and growling responses to make that possible.” Beck Decl., ¶ 20. Movants

do not mention in their Memorandum that Olsen, during his deposition, said, preposterously, for

the first and only time, that Geist “was leaping towards him.” Olsen Depo., 97:6–12, 131:25–

132:5; Olsen Interview.

8. It was difficult for Officer Olsen to describe to internal affairs the demeanor of Geist when he

was charging at Officer Olsen.

Response: Disputed.

Olsen had every opportunity to describe during his internal affairs interview the demeanor

of Geist, yet he simply described how he “started hearing barking,” Olsen Interview, 8:2, and that

it “was charging” at him after Olsen “started to go a little bit quicker to get out”. Olsen Interview,

8:2–4. Again, Olsen said Geist was “barking” and that “this dog was angry, it was barking and it

was running towards [him].” Olsen Interview, 8:16. He also referred to his police report, in which

he said he “heard a dog barking” and “saw a large grey dog running towards me and barking

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loudly.” Olsen Interview, 8:23. Then he said Geist was “coming with a purpose.” Olsen Interview,

10:5.

He didn’t mention growling, ears being back, teeth bared. He said Geist was barking and

ran toward him after Olsen moved quickly to get out of the yard.

9. However, a few months ago an email was sent to all police officers relating to an award that

another police officer was receiving, which attached a picture of a police officer and a police

canine.

Response: Undisputed, but immaterial.

10. Officer Olsen saw the picture of the canine and was struck by the fact that the dog looked

exactly like Geist did on the day Geist charged Officer Olsen.

Response: Disputed.

Any comparison between Geist and the police attack dog referenced by Olsen is ludicrous.

It takes years to train police attack dogs to bite because it goes against their instincts to bark and

growl to resolve conflicts. Weimaraners are not chosen to be attack dogs because they are reserved,

shy, and sensitive dogs. Weimaraners will always bark instead of bite.50 Any comparison between

50 It is silly, truly ludicrous, to compare Geist to the police K9 attack dog pictured in

Exhibit E to the Declaration of Brett Olsen. . . .Police K9 attack dogs are trained

for years to actually bite. It takes years to teach dogs to bite since it goes against

their natural instincts of barking and growling to solve conflict. Also, specific

breeds of dogs are chosen for this job because of their abilities and drives to see

this activity as a game and fun. Weimaraners are not chosen for sport and protection

work because of their reserved, shy, and sensitive nature. Weimaraners will always

choose to bark instead of bite.

Beck Decl., ¶ 24.

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Geist and a police attack dog, and any characterization of Geist as “aggressive,” is entirely

erroneous and “badly misinformed.” Beck Decl., ¶ 25–26.

11. Because a picture can paint a thousand words, a copy of the picture is submitted with this

motion. (Ex. E to Olsen Decl., Photo.)

Response: Disputed.

Kendall does not dispute the photo is submitted by Movants; however, it has nothing to

do with this case or Geist. The comparison is absurd. Because a picture is worth a thousand words,

a comparison is offered between the trained police attack dog in the photo referenced by Olsen

and photos of Geist in various settings and moods.51 Exhibit 7 to Kendall’s Declaration is a

comparison of the photo of the K-9 attack dog referenced by Olsen and several photos of what

Geist actually looked like in various circumstances and activities.

12. On seeing Geist aggressively charging towards him, Officer Olsen first attempted to retreat.

(Olsen Decl. ¶ 37; Ex. 7 to Slark Decl., Olsen Dep. at 86:18–87:11.)

Response: Disputed.

51 Defendant Olsen, in his Declaration dated July 13th, 2016, stated that a photo of a K-9 police

dog “looked exactly like Geist did on [June 18th, 2014].” (Dkt. 36, ¶ 35.) I spent thousands of hours

with Geist and never witnessed Geist appear in a way that was even remotely comparable to the

K-9 police attack dog presented by Olsen. Geist had a demeanor that was relaxed, friendly curious,

well-adjusted, and well-socialized. He appeared friendly and, at most, excited (a) when I would

play with Geist with toys, (b) when we were running, mountain biking, hiking, or kayaking

together, (c) when I would feed Geist or give him treats, (d) when people would walk into the

backyard when Geist was there, (e) when he was barking loudly (including every time someone

knocked on the door or rang the doorbell), and (f) every other time I observed Geist during his

entire life. It was not possible on June 18, 2014, for Geist to appear similar to the K-9 police attack

dog presented by Olsen. The K-9 police attack dog was obviously trained to attack; Geist was

timid of strangers, loving, curious, friendly, and non-violent.

Kendall Decl., ¶13.

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Geist was not “aggressively charging” toward Olsen. See responses to paragraphs 3, 6, 7,

and 10 above.

Also, Olsen did not first attempt to retreat “on seeing Geist aggressively charging towards

him.” Olsen started running after he heard Geist barking, then stopped running after Geist was

provoked to run and “started running” toward Olsen. Olsen Depo., 86:18–87:11; Olsen Interview,

8: 2–4. See response to paragraph 3 above.

13. Realizing he did not have time to exit the yard before Geist reached him and attacked, Officer

Olsen next tried standing his ground and taking a more dominant stance, broadening his

shoulders and stomping his foot, in an attempt to “call Geist’s bluff.”

Response: Disputed.

Olsen’s notion that Geist was going to “attack” him was not a “realization,” but, rather,

something he unreasonably and baselessly imagined. Geist was not going to “attack” Olsen and

there was no reasonable basis for Olsen believing Geist was going to attack. Beck Decl., ¶¶ 3–8,

12–14, 18–23.

14. These actions did not deter Geist and Geist continued to charge towards Officer Olsen

growling, barking and baring his teeth.

Response: Disputed.

Geist did not “continue” to “charge” towards Olsen. He started to run toward Olsen only

after Olsen already unreasonably and unwisely started running after he heard Geist bark. Olsen

Depo., 86:18–87:11; Olsen Interview, 8:2–4. See responses to paragraphs 3 and 13 above. Also,

Geist simply “ran” toward Olsen, as any dog would be expected to do when a stranger is in the

dog’s yard and starts to run. See id.

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15. In the few seconds Officer Olsen had to react, he briefly considered using a taser, but he did

not believe this would be effective given the small surface area of a head on charging dog.

Response: Disputed.

In light of the material inconsistencies in Olsen’s testimony—including his account of

hearing a non-existent doorbell ringing and the knocking on a door when it would be impossible

to hear a knock on that door from where Olsen was standing, and his changing accounts of whether

Geist ran after him before or after Olsen started running—there is no reason to give credence to

what Olsen said his subjective thoughts were at the time. What has been established, however, is

that Olsen had a collapsible baton to use as a distraction or a bite stick and he could have kicked

Geist if he had to, but he did not do either of those things or take other reasonable non-lethal

measures before he unnecessarily and unreasonably pulled out his gun and shot Geist dead. Olsen

Depo., 96:23–97:3; Olsen Interview, 9:10–19; Beck Decl., ¶ 17, 18.

16. When Geist was within four or five feet of Officer Olsen, believing he was in imminent danger

of attack and serious bodily injury, Officer Olsen used his service weapon and fired two rounds

at Geist. (Olsen Decl. ¶ 41; Ex. 7 to Slark Decl., Olsen Dep. at 87:15–18, 97:4–5.)

Response: Disputed.

Under all the circumstances, as set forth in the facts cited by Kendall above, Olsen could

not have had a reasonable belief he was in imminent danger of “attack” and had no justification

for using lethal force and killing Geist. Beck Decl., ¶¶ 3 (“I can strongly say that Geist was acting

with an intent to communicate to Olsen, not with an intent to harm Olsen.”), 5, 6 (“A dog that is

snarling, with its ears back, and barking in a threatening way is extremely unlikely to bite an

intruder unless the dog is trapped, cornered, leashed, or otherwise has its freedom of movement

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impaired.”), 7, 8, 12, 13, 18; Brooks Decl., ¶ 6 (“Weimaraners, when confronted with an intruder

in their territory, are alert, but not vicious. They will bark. They will sometimes run to the intruder.

But they are all bark and no bite.”)

17. Geist came to a rest after being shot.

Response. Undisputed.

That’s what dogs do when they are brutally, unnecessarily, and unreasonably killed. Or as

Olsen said, “[I]t just lost energy and fell right at my feet.” Olsen Interview, 9:6–7.

18. Officer Olsen did not see any signs a dog might be on the property prior to entering the yard.

Response: Disputed.

The deposition testimony cited in support of this “fact” is actually about signs in the yard

after Olsen entered it.

Olsen had to have heard Geist barking loudly before he entered the yard. In fact, he admits

that he may have—or probably—heard Geist barking before he entered the yard. Olsen Depo.,

82:11–83:4, 127:19–128:11, 128:19–23, 134:17–135:10, 145:12–20. From all the other relevant

testimony, it is made clear that Olsen had heard Geist barking and knew Geist was in the backyard

before Olsen entered it. Yvette Zayas, a friend of Olsen’s,52 was in the same area as Olsen,53 and

heard Geist barking loudly. Zayas Depo., 25:8–26:7, 29:5–17, 32:24–33:14, 42:24–43:24; Olsen

Depo., 66:10–67:21. Officer Johnson also heard Geist barking loudly from Kendall’s backyard

when Olsen was nearby, between the east end of Kendall’s backyard and the gate through which

Olsen entered Kendall’s backyard. Deposition of Christopher Johnson (“Johnson Depo.”),

52 Yvette Zayas Deposition (“Zayas Depo.”), portions of which are attached to Anderson Decl. as

Exhibit “10”, 36:20–37:13; Olsen Depo., 65:20–23, 104:22–105:10. 53 Zayas Depo., 44:10–14.

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excerpts of which are Exhibit “11” to Anderson Decl., 23:12–28:14; Olsen Depo., 58:3–59:15,

68:10–13.

19. Indeed, the first time Officer Olsen saw anything that might indicate a dog was on the property

was when he observed a plywood structure when he was checking the area to the north of the

shed after entering the property, seconds before he encountered Geist.

Response: Disputed.

Officer Olsen was in the Kendall backyard for one or one and a half minutes. Olsen

Interview, 9:25–10:1. Throughout much of the backyard were at least two dog bowls, a bright

green tennis ball, and a red chew toy—which could not have been missed by someone in the

Kendall backyard. Kendall Decl., ¶ 18.

20. Even then it was far from clear that the structure was a dog house.

Response: Disputed.

Olsen recognized it as a doghouse. Olsen Depo., 88:4–8, 142:16–18 (“. . . and when I

looked and saw that could be a doghouse . . .”)

21. Officer Olsen was the only person in the yard at the time Geist was shot and the only person

to observe Geist when he attacked Officer Olsen.

Response: Disputed, as to the characterization that Geist “attacked” Olsen.

Geist never attacked Olsen. See Kendall’s responses to paragraphs 3, 6, 7, 10, 12, 14, and

16 above.

22. However, other police officers that were canvassing the neighborhood and another resident

recall seeing Geist shortly before he was shot.

Response: Undisputed.

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23. They all reported Geist was extremely aggressive.

Response: Disputed—and Geist’s behavior behind a fence is immaterial.

The term “extremely aggressive” was not used by Clinch in her email (Ex. 15 to Slark

Decl.), nor in Clinch’s deposition. In fact, she admitted she didn’t know if Geist’s bark that

frightened her was any different than his normal Weimaraner bark—that “[t]here’s no way for

[her] to know that . . .” Deposition of Diana Clinch (“Clinch Depo.”), excerpts of which are Exhibit

“8” to Anderson Decl., 14:17–15:4. Clinch also admitted that she did not know if, when the owner

came home and if Geist were welcoming him, that what she experienced was any different than

what the owner would experience. Clinch Depo., 13:9–13. The fact is that Geist, as a large, two-

and-a-half-year-old Weimaraner, would have had a very loud bark. Brooks Decl., ¶ 14.

A bark much like Geist’s can be heard on a YouTube video referenced at Shea Decl., ¶ 5.

Zayas also never used the term “extremely aggressive.” She referred to Geist’s “aggressive

manner,” Zayas Depo., 26:1, but also spoke about Geist only in terms of his behavior when she

was on one side of a fence and he was on the other, which is wholly irrelevant. (See discussion

below.)

Neither did Johnson ever use the term “extremely aggressive.” And he, too, admitted that

he did not know if Geist “was acting any differently than he always acted when people walked

by.” Johnson Depo., 26:25–27:7.

Geist’s behavior toward people on one side of a fence while he was on the other was typical

and harmless—and is not indicative of what his behavior would be with someone inside the yard

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with him, with no barrier between them. Beck Decl., ¶¶ 27–28.54 “As a matter of common sense,

[the descriptions of Zayas, Johnson, and Clinch] match the normal behavior of a dog when there

is a commotion on the other side of the fence and do not indicate that the dog is ‘aggressive’. . . .

[T]hat behavior was normal for a Weimaraner and does not indicate Geist posed a threat to anyone

entering the yard.” Brooks Decl., ¶ 9.

24. Specifically, Ms. Clinch lives in the neighborhood.

Response: Undisputed.

But she had never walked by Kendall’s home before. Clinch Depo., 15:25–16:1.

25. She contacted the police chief shortly after the incident and stated that she had walked past

Kendall’s backyard shortly before Geist attacked Officer Olsen. (Ex. 14 to Slark Decl., Clinch

Emails; Ex. 15 to Slark Decl., Clinch Dep. at 8:20-9:20, 12:5-14:13, 26:9-15.)

Response: Disputed.

54 Practically all dogs bark when confronted by strangers in the dog’s territory,

but this is especially true if the dog is restricted by a leash or a fence. I have

witnessed thousands of instances of dogs experiencing barrier frustration with

fences. This is exhibited by the behaviors of barking, growling, snarling, and

charging or leaping at the fence. A dog exhibiting these behaviors is not more likely

to bite a person than a dog that is quiet. In virtually all instances of barrier

frustration, when the barrier is removed the dog loses its enthusiasm to bark and

growl. The barrier acts to embolden dogs, making them appear more

confrontational than they really are.

If Geist was barking, snarling, and charging or jumping at the fence on June

18, 2014, then that merely indicates Geist was experiencing barrier frustration.

These behaviors at the fence do not indicate Geist posed a risk of harm to a person

entering the yard. A person inside the yard would encounter Geist without the

presence of the barrier, and therefore Geist would certainly have been less

confrontational than he appeared at the fence.

Beck Decl., ¶¶ 27–28.

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There is no evidence whatsoever that Geist ever attacked Officer Olsen. The evidence

simply establishes that Geist barked and ran toward Olsen after Olsen recklessly and unreasonably

started running because he merely heard Geist’s bark. See responses to paragraphs 3, 6, 7, 10, 12,

14, and 16 above. From the referenced Exhibit 15 to Slark Declaration, it appears Clinch wrote to

a media representative for the SLCPD, Lara Jones, not the Chief of Police. Also, neither of the last

two of the Movants’ citations from the Clinch Deposition relate in any way to what or to whom

she wrote.

26. She testified that Geist was extremely agitated and acted in an extremely aggressive manner

toward her.

Response: Disputed.

Clinch never testified using the terms “extremely aggressive” or “extremely agitated.” (See

the testimony cited by Movants.) Clinch testified: “It was like he was agitated. It was – it was

aggressive. I’m sorry, that’s the best word I can use.” In fact, she admitted she didn’t know if

Geist’s bark that frightened her was any different than his normal Weimaraner bark—that

“[t]here’s no way for [her] to know that . . .” Clinch Depo., 14:17–15:4. Clinch also admitted that

she did not know if, when the owner came home and if Geist were welcoming him, that what she

experienced was any different than what the owner would experience. Clinch Depo., 13:9–13.

27. When asked to expand she stated that the dog had an aggressive bark, was baring its teeth, and

if the fence were not there she “would have been terrified that [the] dog would have attacked

her.”

Response: Undisputed, but irrelevant.

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Clinch was speaking about Geist’s behavior on one side of a fence, while she was on the

other. As noted above, in response to paragraph 23, Geist’s behavior behind a fence was entirely

normal and not in any way indicative of how he would behave with someone on the same side of

the fence as him. One need only go on a walk around most city blocks to understand that dogs will

bark, sometimes sounding like they really mean it, when they are behind a fence.

Again, Clinch has no knowledge about Weimaraners and their normal way of barking when

they are friendly, Clinch Depo., 13:2–4, and she has no idea whether Geist’s bark was simply the

same bark he normally used to welcome home his owner. Clinch Depo., 13:9–13. The fact is that

Weimaraners “bark loudly” and “can be intimidating when there is a barrier, such as a fence,

between the dog and the person to whom the barking is directed.” Brooks Decl., ¶5. However,

“they calm down when the barrier is removed—such as by the person going into the yard.” Id.

28. Ms. Clinch is a lover of dogs and until recently owned a Rottweiler.

Response: Disputed.

Clinch’s response in this matter, without knowing or bothering to discover, anything about

Weimaraners in general, Clinch Depo., 12:25–13:1, or about how Weimaraners bark even if they

are friendly and greeting, id., 13:2–13, is hardly indicative of one who loves dogs. To justify the

brutal killing of a beloved dog like Geist, and the consequent heartbreak and grief of his best friend,

Shea Decl., ¶ 14, on the basis of one’s uninformed attribution of “aggressiveness” to a dog with a

naturally loud bark barking loudly from behind a fence, as is perfectly normal, Beck Decl., ¶¶ 27–

28, is inconsistent with “loving dogs.”

29. She is not easily alarmed by dogs, but Geist alarmed her.

Response: Disputed.

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Clinch’s response, and her letter-writing following the killing of Geist, reflects that she is,

indeed, easily alarmed by dogs. Since she has had dogs, she must know they will bark behind

fences when people walk by, and she must also know that a large dog like Geist will have a very

loud bark. Shea Decl., ¶ 5 (“Weimaraners have a loud, alerting bark . . .”) Hence, she is indeed

apparently “easily alarmed by dogs”—at least those that have loud barks and about whom she has

no knowledge. Clinch Depo., 12:25–13:1.

30. Officer Zayas was canvassing the neighborhood shortly before Geist was shot.

Response: Disputed.

Officer Zayas never once used the word “canvass” or “canvassing.” She called it what it

was: a “search.” Zayas Depo., 14:24–15:4, 15:19–22, 16:1–6, 19:19–20, 19:25–20:1, 21:2–3,

24:23–25, 25:6–7, 47:17.

31. She testified that Geist’s “growl and bark did not sound like a happy I’m-happy-to see-you

bark . . . it was, I’m going to, in my words, eat you bark, which was alarming to me, and I was

glad there was a fence between myself and the dog.”

Response: Undisputed.

However, what Geist did behind a fence is irrelevant. Beck Decl., ¶¶ 27–28.

32. Officer Zayas owns several dogs, including a large aggressive Doberman. (Ex. 9 to Slark Decl.,

Zayas Dep. at 25:8-26:7, 32:24-33:14, 43:4-24.)

Response: Disputed.

The last citation offered by Movants has nothing to do with the fact asserted. Also, Zayas

never testified she “owns several dogs.” She stated, “I have dogs,” but then referred to her “dog”

in the singular. (“I hear when my dog barks . . .”) Zayas Depo., 33:5. She testified that she has

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“owned in my life” some dogs. Id., 32:5–13. She never referred to a “large aggressive Doberman.”

Her ownership, past or present of certain kinds of dogs is irrelevant to her clearly erroneous

characterizations of Geist since she has no familiarity with Weimaraners. Zayas Depo., 26:8–11,

32:18–23 (“I don’t know anything about Weimaraners.”)

33. She is a dog lover and is not easily scared by a dog. (Ex. 9 to Slark Decl., Zayas Dep. at 25:8-

26:7, 32:24-33:14, 43:4-24.)

Response: Disputed.

Nothing in any of the testimony cited by Movants supports these factual assertions.

It would appear from Zayas’s testimony that she does not love all dogs, particularly

Weimaraners like Geist who do what Weimaraners naturally do, harmlessly, and that she, in fact,

is easily scared of a dog who has a naturally loud bark and is exhibiting natural barrier frustration.

See Beck Decl. ¶¶ 27–28.

34. Officer Johnson also saw Geist shortly before he was shot.

Response: Undisputed.

35. He testified that Geist “lowered its chest to the ground when he was barking or he’d jump on

the fence and then he actually would show his teeth, like, his upper lip would come up and

you’d see his teeth . . .”

Response: Undisputed.

What Geist did behind a fence is irrelevant. Beck Decl., ¶¶ 27–28.

36. Officer Johnson also owns a large dog, a golden retriever.

Response: Undisputed. And as irrelevant as the fact that Kendall’s counsel owns a Golden

Retriever, too.

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3. Kendall’s Statement of Additional Elements and Material Facts

Movants have failed to set forth the elements of an unconstitutional seizure or the elements

of Kendall’s § 1983 claim that Olsen, Purvis, and SLCC violated Kendall’s constitutional

protections against the warrantless, non-consensual seizure of his best friend Geist. The elements

for a § 1983 claim for an unconstitutional seizure are the same as the elements set forth supra,

section I. A. 4. b.

a. Elements and Material Facts for Unconstitutional Seizure

The following are the elements of Kendall’s claim that Olsen, Purvis, and SLCC

engaged in, or are otherwise liable for, an unconstitutional seizure of Geist and the facts

establishing that the elements are met by Kendall:

A. There must have been a “seizure.” “A ‘seizure’ of property occurs when there is

some meaningful interference with an individual’s possessory interests in that

property.” United States v. Jacobsen, 466 U.S. 109, 113 (1984). It was clearly

established at the time of Olsen’s killing of Geist that the killing of a dog by a police

officer is a “seizure” under the Fourth Amendment. Mayfield v. Bethards, 2016 WL

3397503, *5 (10th Cir. 2016).

Facts demonstrating that Kendall has met that element:

1. Olsen killed Geist. City’s Response to Request for Admissions No. 2; Olsen Depo.,

26:20–23, 94:3–11.

B. The seizure must not have been pursuant to a warrant or some exception to the

warrant requirement. Mayfield v. Bethards, 2016 WL at *3.

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Facts demonstrating that Kendall has met that element:

1. There was no warrant for the seizure of Geist. Kendall Decl., ¶ 17.

2. No exception to the warrant requirement has been claimed or established by

Movants.

3. The search was not “reasonable” (with all facts viewed in the light most favorable

to Kendall on a motion for summary judgment). As demonstrated supra, there was no necessity,

and no reasonable basis whatsoever, for the killing of Geist.

(a) Olsen was in the Kendall backyard unconstitutionally and otherwise

illegally, see supra, section I;

(b) Olsen failed to check to see if a dog was present in the yard before entering

it, Olsen Depo., 26:17–22, 80:25-81:2;

(c) Olsen failed to whistle or call out to see if a dog was in the yard before

entering it, id.;

(d) Olsen ran after he heard a dog was in the yard after entering it, Olsen Depo.,

86:18–87:11;

(e) Olsen failed to use non-lethal alternatives such as a baton, a Taser, or his

boot, Olsen Depo., 96:23–97:3, Olsen Interview, 9:10–19;

(f) Olsen used lethal force when non-lethal force or no force at all would have

sufficed, Beck Decl., ¶ 18; and

(g) Olsen’s killing of Geist was completely unnecessary. Beck Decl., ¶ 23.

4. Even if exigent circumstances for the warrantless seizure of Geist had been claimed

by Movants, any purported exigent circumstances asserted as a justification for the warrantless

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seizure were created by Purvis and Olsen by (1) the unconstitutional and otherwise unlawful entry

into Kendall’s backyard by Olsen and (2) Olsen’s reckless and provocative running away when he

heard Geist’s bark. (The facts on these points are set forth in detail above.)

C. The government agents have not met their burden of justifying a warrantless,

non-consensual seizure. In order to invoke exigent circumstances to justify a warrantless, non-

consensual seizure, the government agents responsible for the seizure must demonstrate they did

not create the exigency. The Movants have the burden of establishing the exigent circumstances

exception to the warrant requirement. “The government bears the burden of proving the exigency

exception to the warrant requirement applies.” United States v. Najar, 451 F.3d 710, 717 (10th

Cir. 2006) (citing United States v. Wicks, 995 F.2d 964, 970 (10th Cir. 1993)).

It was “clearly established . . . that law enforcement officers cannot create an exigency

justifying their actions. McInerney v. King, 791 F.3d 1224, 1238 (10th Cir. 2015) (citing United

States v. Martin, 613 F.3d 1295, 1304 (10th Cir. 2010); United States v. Bonitz, 826 F.2d 954, 957

(10 Cir. 1987)).

Facts demonstrating that Kendall has met that element:

1. The facts, described in detail above, establish that, even if Movants had claimed

“exigent circumstances” in relation to the killing of Geist (which they have not), there is powerful

evidence (which must be viewed in the light most favorable to Kendall) that Olsen’s killing of

Geist was wholly unnecessary and unreasonable.

2. Further, the factual record, supra, sections I.A.2–4, II. A. 2–3, demonstrates that

Movants created any “exigency” that may be asserted by them for the killing of Geist insofar as

(1) Olsen was unconstitutionally and otherwise illegally in Kendall and Geist’s yard, after failing

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to even check to see if a dog was present (or, as the evidence indicates, after actually knowing

Geist, with his loud bark, was in the yard), and (2) Olsen provoked Geist to run toward him and

continue barking (albeit harmlessly, but still apparently serving as the only ground relied upon by

Movants to justify Olsen’s senseless killing of Geist) by inexplicably running away after simply

hearing Geist bark.

B. Kendall’s State Constitutional Claims

1. Movants’ Statement of Elements and Kendall’s Responses

As noted in the Introduction, supra, Kendall has withdrawn his claims under Article I,

sections 1 and 7 of the Utah Constitution inasmuch as those claims are more appropriately analyzed

under the constitutional protections against unreasonable searches and seizures.

Movants have offered nothing other than a bare statement that, under Article I, section 14

of the Utah Constitution, there is not a flagrant violation if there was a reasonable basis to warrant

the particular intrusion. The facts set forth above demonstrate there was no reasonable basis for

the seizure of Geist, particularly since there was no warrant, any “exigency” was created by Olsen,

and the shooting of Geist was wholly unreasonable under the circumstances.

2. Kendall’s Response to Movants’ Statements of “Undisputed Material Facts”

Movants offer as their undisputed materials facts relating to Kendall’s state constitutional

claims a reference to the “same facts that apply to Kendall’s claim that it was a violation of the

Fourth Amendment . . . for Officer Olsen to seize Geist . . .” Movants’ Memorandum ¶ 20.

Kendall responds by referring, likewise, to his responses and factual assertions relating to

his claim that Olsen’s seizure of Geist was a violation of the Fourth Amendment. See supra,

sections II. A. 1–3.

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C. Kendall’s State Law Claims for Trespass to Chattel, Conversion, Negligence, and

Intentional Infliction of Emotional Distress

1. Movants’ Statement of Elements and Kendall’s Responses

A. A claim for conversion requires proof of a willful interference with property,

without lawful justification.

Kendall disagrees with those elements insofar as “willful” is not specifically defined. The

state of mind required is as follows:

“Although conversion results only from intentional conduct it does not however

require a conscious wrongdoing, but only an intent to exercise dominion or control

over the goods inconsistent with the owner's right.” Allred v. Hinkley, 8 Utah 2d

73, 328 P.2d 726, 728 (1958). That is, a conversion requires “only an intentional

interference with the true owner's rights.” Id.

Lawrence v. Intermountain, Inc., 2010 UT App 313, ¶ 16 n.7, 243 P.3d 508.

B. A claim for trespass to chattel requires the same.

Kendall disagrees with that statement of elements insofar as it is unclear what is, and what

is not, included in “the same.” The correct statement of the elements of trespass to chattel is as

follows:

A trespass to a chattel may be committed by intentionally (a) dispossessing another

of the chattel, or (b) using or intermeddling with a chattel in the possession of

another.

Restatement (Second) of Torts § 217 (1965).

One who commits a trespass to a chattel is subject to liability to the possessor of

the chattel if, but only if, (a) he dispossesses the other of the chattel, or (b) the

chattel is impaired as to its condition, quality, or value, or (c) the possessor is

deprived of the use of the chattel for a substantial time, or (d) bodily harm is caused

to the possessor, or harm is caused to some person or thing in which the possessor

has a legally protected interest.

Restatement (Second) of Torts § 218 (1965).

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C. A claim for intentional infliction of emotional distress requires that the defendant

intentionally engaged in some conduct toward the plaintiff, (a) with the purpose of inflicting

emotional distress, or, (b) where any reasonable person would have known that such would result;

and his actions are of such a nature as to be considered outrageous and intolerable in that they

offend against the generally accepted standards of decency and morality.

Kendall agrees with those elements and contends he has met them.

D. With limited exception, a claim for intentional infliction of emotional distress may only

lie for conduct that occurs within the presence of the plaintiff.

Kendall disagrees with that element. There is no presence requirement for a claim of

intentional infliction of emotional distress caused by the killing of a pet. Brown v. Muhlenberg

Twp., 269 F.3d 205, 218 (3d Cir. 2001) (analyzing recovery for shooting of dog with no presence

requirement); Richardson v. Fairbanks N. Star Borough, 705 P.2d 454, 456 (Alaska 1985) (same)

Katsaris v. Cook, 180 Cal. App. 3d 256, 267 (1986) (same); Gill v. Brown, 695 P.2d 1276, 1277

(Idaho App. 1985) (finding pet owners could recover for the shooting of their donkey with no

presence requirement); Daughen v. Fox, 539 A.2d 858, 860 (Pa. Super. 1988) (analyzing recovery

for death of a pet with no presence requirement); Rabideau v. City of Racine, 627 N.W.2d 795,

803 (Wis. 2001) (while owner was in fact present, analyzing recovery for shooting of dog with no

presence requirement).

2. Kendall’s Response to Movants’ Statement of “Undisputed Material

Facts”

Movants have stated for their “undisputed material facts” relating to Kendall’s claims for

trespass to chattel, conversion, negligence, and intentional infliction of emotional distress that

“[t]he same facts that apply to Kendall’s claim that it was a violation of the Fourth Amendment

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and a violation of article I, section 7 and 14 of the Utah Constitution for Officer Olsen to seize

Geist . . . apply here.” Movants’ Memorandum at 21.

The same facts set forth by Kendall in support of his claims that Olsen’s seizure of Geist

violated the federal and state constitutions apply here, demonstrating that there are genuine issues

of material facts, precluding summary judgment.

3. Kendall’s Statement of Additional Material Facts

1. On June 18, 2014, when Kendall learned that Geist had been killed, Kendall

experienced shock and overwhelming emotions of anger and sadness. Kendall Decl., ¶ 16.

2. Kendall’s distress increased exponentially when he arrived home and saw Geist in

Kendall’s backyard. Id.

3. The events of that day caused Kendall to experience severe symptoms of post-

traumatic stress disorder, flashbacks, traumatic dreams, trouble concentrating, depression, anxiety,

paranoia, fear of police officers, anger and rage, emotional numbness, and lack of interest in

activities Kendall used to enjoy with Geist or that involve going to locations where police officers

are present. Id.

4. Kendall was absolutely broken hearted, as if a member of his family or a best

friend—which Geist was to Kendall—had been unnecessarily killed because of the ignorance,

reckless decision to run, and trigger-happiness of the killer. Shea Declaration, ¶ 14.

4. Kendall’s Statement of Additional Elements and Material Facts

Movants do not mention the elements of negligence. As discussed supra, section I. C. 1.,

the elements of negligence are “(1) that Defendant owed Plaintiff a duty, (2) that Defendant

breached that duty, (3) that the breach of duty was the proximate cause of Plaintiff’s injury, and

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(4) that Plaintiff in fact suffered injuries or damages.” Hunsaker v. State, 870 P.2d 803, 897 (Utah

1993).

1. Movants owed Kendall a duty. As discussed supra, section I. C. 1., the relevant

factors to determine whether a defendant owes a duty to a plaintiff include: “(1) whether the

defendant’s allegedly tortious conduct consists of an affirmative act or merely an omission . . . (2)

the legal relationship of the parties; (3) the foreseeability or likelihood of injury; (4) “public policy

as to which party can best bear the loss occasioned by the injury,”; and (5) “other general policy

considerations.” B.R. ex rel. Jeffs v. West, 2012 UT 11, ¶ 5, 275 P.3d 228 (citations omitted).

The facts establishing this element are set forth in detail supra, sections I. A. 2–4, II. A.

1–3, including those facts showing that (1) Olsen voluntarily entered onto Kendall’s residence; (2)

Olsen searched the curtilage of Kendall’s residence; (3) Olsen opened the shed in Kendall’s

backyard; (4) Olsen failed to check for a dog before he entered Kendall’s backyard; and (5) Olsen

failed to use reasonable alternatives to lethal force.

2. Olsen breached that duty, for which the City is liable under Utah Code Ann. §

63G-7-301(2)(i) (previously § 63G-7-301(4)). (As discussed above, the pending Motion for Leave

to File a Second Amended Complaint is intended to make clear that if the individual defendants

are not to be held accountable individually for their negligence, then the City should be held

accountable, as contemplated by the Utah Governmental Immunity Act.)

The facts establishing this element are set forth in detail supra, including those facts

showing that (1) Olsen failed to recognize that Geist, who was barking loudly at Officers Zayas

and Johnson when Olsen was nearby, was in the backyard of Kendall’s residence before Olsen

entered into the backyard; (2) Olsen failed to call out, shake the fence, or do anything else to notify

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a person or animal potentially present on the premises before entering the backyard to the Kendall

residence; (3) Olsen failed to clear the backyard of the Kendall residence without entering by

looking over the three gates into the yard and the chain link fence, and apparently did not even

consider doing so; (4) Olsen failed, after entering the backyard of the Kendall residence, to observe

the many signs that a dog was present, including multiple dog bowls, a red rubber chew toy, and

a tennis ball; (5) when Olsen heard Geist barking, Olsen perplexingly decided to run away; (6)

when Geist, as would any dog, followed Olsen, Olsen erroneously concluded that because Geist

was running and barking that Geist was likely to bite Olsen, even though barking is a sign the dog

does not intend to bite; (7) Olsen did not even consider using his baton or other reasonable non-

lethal alternatives to deter or distract Geist; (8) Olsen chose not to simply stand still while Geist

approached Olsen; (9) Olsen chose not to simply use his voice to calm or deter Geist; and (10)

Olsen withdrew, aimed, and twice discharged his weapon, killing Geist.

3. It was foreseeable to Olsen that Kendall would suffer a severe emotional injury

and damage to property as a result of the killing of Geist.

The facts establishing this element are as follows:

1. Geist was loved like a best friend by Kendall. Shea Decl., ¶ 14.

2. Geist was secured in a backyard, with toys, dog bowls, and a dog house. Kendall

Decl., ¶¶ 11, 18.

3. Geist was killed in Kendall’s backyard and his dead body was left there for Kendall

to see when he arrived home. Kendall Decl., ¶ 16.

4. Grieving over the death of a pet dog is common and such grief can be as severe, if

not more intense, than the death of a family member. Beck Decl., ¶ 31.

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4. Kendall suffered substantial damages and injury as a result of the breach by

Olsen of his duty owing to Kendall.

The facts establishing this element are set forth in the immediately preceding paragraph.

Also:

1. Kendall “experienced shock and overwhelming emotions of anger and sadness” when

he learned Geist had been killed. Kendall Decl., ¶ 16.

2. Kendall’s “distress increased exponentially when [he] arrived home and saw Geist in

[his] backyard. Kendall Decl., ¶ 16.

3. The killing of Geist caused Kendall to suffer from “severe symptoms of post-traumatic

stress disorder, flashbacks, traumatic dreams, trouble concentrating, depression,

anxiety, paranoia, fear of police officers, anger and rage, emotional numbness, and lack

of interest in activities [he] used to enjoy with Geist or that involve going to locations

where police officers are present. Kendall Decl. ¶ 16.

4. Kendall was broken-hearted, as if a member of his family or best friend had been

unnecessarily killed. Shea Decl., ¶ 14.

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ARGUMENT

I. OFFICER OLSEN’S ENTRY INTO AND SEARCH OF THE

CURTILAGE OF KENDALL’S HOME, PURSUANT TO THE

INSTRUCTIONS OF PURVIS, WAS AN UNCONSTITUTIONAL

SEARCH UNDER BOTH THE UNITED STATES AND UTAH

CONSTITUTIONS.

The Fourth Amendment protects the right of privacy in our “persons, houses, papers, and

effects.” With extremely limited exceptions, for government agents to engage in, or instruct others

to engage in, searches of private homes (including curtilages), they must first obtain a warrant

issued by an independent magistrate or obtain consent for the search. In contempt of that

fundamental privacy protection, Purvis instructed police officers to search “everywhere”55—

intending and communicating his intention that they enter into enclosed, private yards without a

warrant and without consent56—and, pursuant to Purvis’s instructions, Olsen entered Kendall’s

backyard, walked around the yard, opened and searched a shed, then ruthlessly and unnecessarily

killed Geist—all without a warrant, without consent, and without any reasonable cause to believe

there was any connection between Kendall’s backyard and the emergency that gave rise to the

perceived need for the search, all in violation of the Fourth Amendment of the United States

Constitution and its Utah corollary, Article I, section 14 of the Utah Constitution.

A. The United States and Utah Constitutions Provide Essentially the Same

Protections Against Unreasonable, Warrantless Searches.

In one aspect of an automobile search, Article I, section 14 of Utah Constitution was

interpreted by a plurality of the Utah Supreme Court as providing greater privacy protections than

55 Olsen Depo., 55:25–56:8. 56 Olsen Depo., 56:2–13, 112:23–114:8, Worsencroft Depo, 24:19–25:4; Purvis Depo., 73:23–

74:21.

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the Fourth Amendment to the United States Constitution.57 However, the two constitutional

provisions, except in “compelling circumstances,” are now to be treated uniformly.58

Hence, under both the Utah and United States Constitutions, searches conducted without

warrants “are per se unreasonable . . . subject only to a few specifically established and well-

delineated exceptions.”59 “One such exception to the warrant requirement recognized by both the

United States Supreme Court and Utah’s appellate courts is exigent circumstances.”60

1. Just as Federal Constitutional Provisions May Be the Basis for an

Award of Money Damages Against Government Agents Acting

Under Color of Law, Utah Law Similarly Provides Remedies for

Violations of Self-Executing State Constitutional Provisions.

In Bott v. DeLand,61 the Utah Supreme Court followed the lead of the United States

Supreme Court in Bivens v. Six Unknown Federal Narcotics Agents,62 which “allowed a claimant

to recover damages from federal narcotics agents directly under the Fourth Amendment for the

57

State v. Larocco, 794 P.2d 460 (Utah 1990). 58

State v. Anderson, 910 P.2d 1229, 1235 (Utah 1996) (“[W]e have endeavored toward uniformity

in the application of the search and seizure requirements of the state and federal constitutions,

particularly since the respective provisions are practically identical.”) 59

Salt Lake City v. Davidson, 2000 UT App 12, ¶ 9, 994 P.2d 1283, (quoting State v. Ashe, 745

P.2d 1255, 1258 (Utah 1987) (quoting Katz v. United States, 389 U.S. 347, 357 (1967))) (inside

quotation marks omitted). 60 Id. (citing Mincey v. Arizona, 437 U.S. 385, 390 (1978); State v. Genovesi, 909 P.2d 916, 921

(Utah Ct. App. 1995)). 61

922 P.2d 732 (Utah 1996). West Publishing Company incorrectly reflects that Bott v. DeLand

has been “abrogated” by Spackman ex rel. Spackman v. Bd. of Educ., 2000 UT 87, 16 P.3d 533,

which error is repeated in Jensen v. Cunningham, 2011 UT 17, ¶ 51, 250 P.3d 465 (where the Utah

Supreme Court indicates Bott was “overruled on other grounds by Spackman”). Bott was not

“abrogated” or “overruled” by Spackman any more than Bivens has been “abrogated” or

“overruled” by later cases that have limited its reach. Rather, Spackman recognizes Bott as having

allowed a private cause of action for the violation of self-executing constitutional provisions, then

simply “clearly articulate[s] the source of [the Court’s] authority to provide damages” and “clearly

establish[es] an analytical framework for determining when damages would be an appropriate

remedy for the violation of a self-executing constitutional provision.” Spackman at ¶ 19. 62 403 U.S. 388, 407 (1971).

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violation of his right against unreasonable searches and seizures.”63 Bott held that “self-executing

constitutional provisions allow for awards of money damages.”64 In Spackman, the Utah Supreme

Court held that “a plaintiff must establish . . . three elements before he or she may proceed with a

private suit for damages” for the violation of a self-executing provision of the Utah Constitution.65

“First, a plaintiff must establish that he or she suffered a ‘flagrant’ violation of his or her

constitutional rights.”66 “Second, a plaintiff must establish that existing remedies do not redress

his or her injuries.”67 “Third, a plaintiff must establish that equitable relief, such as an injunction,

was and is wholly inadequate to protect the plaintiff’s right or redress his or her injuries.”68

In Jensen v. Cunningham,69 the Utah Supreme Court held that Article I, section 14 of the

Utah Constitution is self-executing, noting as follows:

The plain language of this section directly prohibits unreasonable searches and

seizures without probable cause for a warrant. Such a rule sufficiently gives effect

to the underlying rights and duties without implementing legislation.70

63

Bott, 922 P.2d at 738.The self-executing constitutional provision at issue in Bott was Article I,

Section 9, which provides that “[p]ersons arrested or imprisoned shall not be treated with

unnecessary rigor.” Id. at 737–738. 64 Id. at 739. 65

Spackman, 2000 UT 87 ¶ 22, 16 P.3d 533. 66 Id. ¶ 23. In Spackman, the Court stated a “flagrant” violation means “a defendant must have

violated ‘clearly established’ constitutional rights ‘of which a reasonable person would have

known.” Id. That does not, however, mean that there must be “clear precedent on point that

specifically recognizes the claimed right and applies it to analogous facts.” There may be

“instances where a defendant’s conduct will be so egregious and unreasonable that it constitutes a

flagrant violation of a constitutional right even in the absence of controlling precedent.” Jensen v.

Cunningham, 2011 UT 17. ¶ 67, 250 P.3d 465. 67 Id. ¶ 24. 68 Id. ¶ 25. 69

2011 UT 17, ¶ 63, 250 P.3d 465. 70 Id.

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Hence, Kendall is entitled to pursue his state constitutional claims for the violations of

Article 1, section 14 of the Utah Constitution because (1) Purvis and Olsen’s conduct constituted

a “flagrant” violation of Kendall’s constitutional rights; (2) other existing remedies, such as

legislation, do not redress his injuries; and (3) equitable relief is wholly inadequate to protect

Kendall’s rights or to redress his injuries.

B. The Entry into and Search of the Curtilage of Kendall’s Home Was a

“Search” Within the Meaning of the Fourth Amendment of the United

States Constitution and Article I, Section 14 of the Utah Constitution.

The most basic “simple baseline”71 test for what constitutes a “search” within the meaning

of the Fourth Amendment is based on the concept of trespass, particularly the intrusion upon the

places and things listed in the Fourth Amendment: persons, houses, papers, and effects. “For most

of our history the Fourth Amendment was understood to embody a particular concern for

government trespass upon the areas (‘persons, houses, papers, and effects’) it enumerates.”72

“Where . . . the Government obtains information by physically intruding on a constitutionally

protected area, such a search has undoubtedly occurred.”73 Although that test was expanded by

Katz v. United States, 389 U.S. 347 (1967), broadening Fourth Amendment protections to other

areas where there is an expectation of privacy, it did not alter the fundamental protection of

“persons, houses, papers, and effects” against unreasonable searches and seizures. “[T]hough Katz

may add to the baseline, it does not subtract anything from the Amendment’s protections ‘when

the Government does engage in [a] physical intrusion of a constitutionally protected area.’”74 “The

71 Florida v. Jardines, 133 S.Ct. at 1414. 72

United States v. Jones, 132 S.Ct. 945, 950 (2012). 73 United States v. Jones, 132 S.Ct. at 950–951, n. 3. 74

Florida v. Jardines, 133 S.Ct. at 1414 (quoting United States v. Knotts, 460 U.S. 276, 286 (1983)

(Brennan, J., concurring in the judgment).

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Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-

law trespassory test.”75

Stressing the fundamental right of people to be left alone in their homes, including the

curtilages of their residences, the Supreme Court has noted the following principles:

[W]hen it comes to the Fourth Amendment, the home is first among equals. At the

Amendment’s ‘very core’ stands ‘the right of a man to retreat into his own home

and there be free from unreasonable governmental intrusion.’76

We therefore regard the area “immediately surrounding and associated with the

home”—what our cases call the curtilage—as “part of the home itself for Fourth

Amendment purposes.”77

This area around the home is “intimately linked to the home, both physically and

psychologically,” and is where “privacy expectations are most heightened.”78

Even if a resident were required to demonstrate a “legitimate expectation of privacy in the

premises searched”79 to be afforded the constitutional protections against unreasonable searches

and seizures, Kendall has abundantly demonstrated his obvious expectation of privacy in his home,

including the curtilage.80

For purposes of determining if a search occurred by an agent of the government, the

purpose of the search does not matter. It can be a search for evidence of a crime, for a suspect of a

crime, to determine compliance with administrative requirements,81 or a search for a missing

75

United States v. Jones, 132 S.Ct., at 952 (emphasis in original). 76

Florida v. Jardines, 133 S.Ct. at 1414 (quoting Silverman v. United States, 365 U.S. 505, 511

(1961). 77 Id. (quoting Oliver v. United States, 466 U.S. 170, 180 (1984)). 78 Id., 133 S.Ct., at 1415 (quoting California v. Ciraolo, 476 U.S. 207, 213 (1986)). 79

United States v. Jones, 44 F.3d 860, 871 (10th Cir. 1995); see also Illinois v. Caballes, 543 U.S.

405, 409 (2005). 80 Kendall Decl., ¶¶ 5–10. 81

Camara v. Municipal Court, 387 U.S. 523 (1967).

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person.82

Movants contend that when Olsen entered through the gate of Kendall’s property, walked

around the private property, opened and searched the shed there, and then killed Geist, there was

“not a Fourth Amendment search.”83 That curious argument is based entirely on a misreading of

Galindo v. Town of Silver City, 127 F. App’x 459 (10th Cir. 2005) (unpublished).84 In Galindo

there were numerous signs of illegal activity and a likelihood that a minor who had been missing

for hours was in the home being searched. Id. at 462–63. The decision clearly did not stand for the

proposition that there was not a “Fourth Amendment ‘search’” of the curtilage.

C. The Law Was Clearly Established That the Warrantless Search of the

Curtilage of Kendall’s Home Could Not Be Justified by Exigent

Circumstances Because There Was No Cause to Believe There Was Any

Association Between the Kendall Property and the Perceived Emergency

Movants claim that Olsen’s entry into Kendall’s backyard was justified by “exigent

circumstances.” At the core of those purported “exigent circumstances” is the understanding (albeit

incorrect, due to the negligent search of the Horman house by police officers85) that a two- or three-

year-old boy86 was missing from a house about 1/8 of a mile from the Kendall residence.87

82 “The fourth amendment requirements . . . apply whether the officer conducting the search is

looking for a missing person or for evidence of a crime.” State v. Beede, 406 A.2d 125, 129 (N.H.

1979) (citing Camara v. Municipal Court, 387 U.S. 523, 528–29 (1967)); State v. Slade, 362 A.2d

194, 195 (1976)). See also State v. Yoder, 935 P.2d 534 (Utah 1997). 83 Movants’ Memorandum at 23. 84 That case is an “order and judgment” that “is not binding precedent” and the citation to the case

“must include an appropriate parenthetical notation” signifying that it is unpublished. 10th Cir.

Rule 32.1(B). 85 Note 8, supra. 86 Note 6, supra. 87 Kendall Decl., ¶ 12.

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There appears to be somewhat of a difference in the analysis of “exigent circumstances”

under Utah case law and federal cases. Under Utah law, an exception to the warrant requirement

is permitted under the “emergency aid doctrine,” pursuant to which there must be “some reliable

and specific indication of the probability that a person is suffering from a serious physical injury.”

State v. Comer, 2002 UT App 219, ¶ 10, 51 P.3d 55. In Comer, the Court held that “the emergency

aid doctrine does not apply to the facts of this case because the information available to the police

was insufficient to support an objectively reasonable belief that an unconscious, semi-conscious,

or missing person feared injured or dead might be in the [searched] home.” Id. ¶ 19.

Under Utah law, “[t]he difference between exigent circumstances and emergency aid

situations is that in the former there is probable cause but no warrant, while in the latter there is no

probable cause to justify a warrant and the purpose is not to arrest, search, or gather evidence.”88

That is consistent with the testimony of Olsen, in which he agreed that “even though there might

be exigent circumstances you still needed the sort of cause that would be required in order to obtain

a warrant.” Olsen Depo., 6:23–7:2.

Similarly, under federal cases, “[g]enerally, a warrantless entry under the exigent-

circumstances exception requires probable cause and exigent circumstances.”89 “The Tenth

Circuit, however, appears to have recognized a subset of exigent-circumstances cases—what the

Court refers to as ‘emergency-aid’ cases—that do not require probable cause.”90

88 Salt Lake City v. Davidson, 2000 UT App 12, ¶ 15, 994 P.2d 1283. 89

U.S. v. Christy, 785 F.Supp.2d 1004, 1026 (D.N.M.) (citing Kirk v. Louisiana, 536 U.S. 635,

638 (2002); Manzanares v. Higdon, 575 F.3d 1135, 1142–43 (10th Cir. 2009)). 90 Id.

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Whatever inconsistency there might be between Utah law and federal law in the Tenth

Circuit on that point can be resolved by simply equating “reasonable grounds to believe” with a

“probable cause” requirement in a case involving an emergency.91

Kendall concedes that, notwithstanding the sloppiness of the police search of the Horman

home for the missing child, there were reasonable grounds for Purvis and Olsen to believe there

was an urgent situation: to their knowledge, a two- or three-year-old boy was missing from his

home.

However, that is where any “reasonableness” ends in an analysis of what Purvis and Olsen

did—and in the analysis by Movants of the standards setting the bounds of any reasonable search.

The belief that there is an exigent circumstance, such as the need to find a missing toddler

and make sure he is not in harm’s way, is not the end of the analysis as to whether a search

comports with the Fourth Amendment. Such a circumstance cannot justify, for instance, an

indiscriminate search of all homes or curtilages in an area within as large a circumference from a

missing boy’s home as he might have traveled in the time he has been missing, as Purvis and Olsen

seem to think.92

According to Purvis and Olsen, any search of any home or curtilage (including enclosed

yards) was fair game for a warrantless, non-consensual search as long as the property to be

searched was within the distance the missing boy could have traveled and was accessible to him.93

91 This formulation is precisely the result reached in Oliver v. United States, 656 A.2d 1159, 1166

(D.C.App. 1995). 92 Purvis Depo., 34:13–35:2, 42:13–43:4, 44:8–18, 45:16–46:8, 47:5–6, 48:19–49:2, 55:5–56:18;

Olsen Depo., 90:4–16. 93 Q: So, in your view, any property that’s accessible and within the range of what

you think a three-year-old boy could walk to, given the elapsed time, is fair game

for a search by a police officer?

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Purvis and Olsen had no reason to believe the properties to be searched, or actually

searched (including Kendall’s), had anything to do with the missing boy or the circumstances of

his disappearance. Olsen Depo., 72:24–73:11, 75:1–76:24, 79:6–80:16. The homes and yards

(many of them enclosed) were simply within the distance the police officers thought he could have

wandered—and, to them, that was sufficient.

As Movants put it (using the word “confined” in an incredibly expansive sense): “Officers

. . . confined their searches to places a three year old child could reasonably have wandered.”

Movants’ Memorandum at 27. Movants also make the point that “[a] child could easily reach the

latches to any of the gates that lead to Kendall’s backyard.” Id. In other words, for as far away as

A: Provided he could get to it and it was very accessible, yes.

Olsen Depo. 90:4–9.

Q: Next sentence says, quote (as read): “We were told to check the with the

residences and check the yards/property for the child and keep track of what yards

we could access and clear and what neighbors we talked with in person.”

A: That does sound accurate.

Q: And you told them to do that?

A: Yes.

Q: And that would have included, if they couldn’t see the entire yard, to go inside

the yard to make sure they saw whether the boy was somewhere in the yard?

A: That would be my expectation.

Q: And would it also have been your expectation that they open and search inside

sheds in backyards?

A: I hadn’t, um, thought of that at the time, but it seems like a good idea.

Q: Even without consent, without a warrant?

A: Well, I – again, if that’s where the child is, that’s where we’ve got to go get

them, yeah.

Q: And even without any connection[,] other than proximity to the boy’s home[,]

between that specific property and the perceived emergency?

A: Yes.

Purvis Depo., 73:23–74:21.

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the boy could have traveled and wherever he would have had access, any private property could

be searched by the police without a warrant and without consent. Since “the possibility that he had

been abducted was not ruled out,” id. at 26, Movants’ logic and unique view of Fourth Amendment

law would mean warrantless, non-consensual searches could constitutionally have been conducted

by police anywhere an abductor might have traveled with the boy since he went missing and

wherever the abductor might have gained access. Apparently no home or curtilage within the

Wasatch Front, or perhaps beyond, would have been safe. That notion of virtually unbounded

authority to enter into and search people’s private homes and curtilages is what led to the flagrant

violation by Olsen of Kendall’s constitutional rights, with tragic consequences.

The law was clearly established that much more than spatial proximity and access must be

established before a police officer, without a warrant and without consent, can rummage around

through people’s homes whenever someone is missing. Regardless of what Purvis and Olsen

thought, it is not enough that a house is within reach of a missing boy and accessible to him.

The law requires that there must be reasonable cause to believe there is a connection

between the property to be searched and the emergency giving rise to the need for a search.94 In

this case, there was no connection, and no reason to believe there was a connection, between

Kendall’s property and the missing boy. None.95

94 See e.g. Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978) (“The critical element in a

reasonable search is . . . that there is reasonable cause to believe that the specific ‘things’ to be

searched for and seized are located on the property to which entry is sought.”). 95 Olsen Depo., 75:1–76:24, 79:6–14, 79:21–80:16, 89:9–14, 119:18–120:3, 153:12–22; Purvis

Depo., 55:5–56:18, 79:24–80:4; Worsencroft Depo., 66:6–12, 66:25–67:15; Johnson Depo., 20:2–

15.

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Noting that “the government bears the burden of proving the exigency exception to the

warrant requirement applies,” and that the “burden is especially heavy when the exception must

justify the warrantless entry of a home,”96 the United States Court of Appeals for the Tenth Circuit

employs the following test for determining if non-criminal searches are reasonable: “[W]hether

(1) the officers have an objectively reasonable basis to believe there is an immediate need to protect

the lives or safety of themselves or others, and (2) the manner and scope of the search is reasonable

. . .” United States v. Najar, 451 F.3d 710, 718 (10th Cir. 2006). In determining the second prong

of that test was met in Najar, the Court noted that the officer “did not attempt to search any place

beyond the locations where a victim might likely be found” and “[t]he officers confined the

search to only those places inside the home where an emergency would reasonably be

associated.” Id. at 720 (emphasis added).

Those are the same requirements set forth by the Utah Court of Appeals:

When a search is performed in an emergency situation, the area searched

must have a close connection to the emergency. [State v.] Yoder, 935 P.2d [534,]

550 [(Utah Ct. App. 1997)] Specifically, there must be a nexus between the

emergency situation and the area or place to be searched. See id. (noting defendant’s

behavior and demeanor and proximity of missing child’s clothing to defendant’s

apartment justified search of defendant’s apartment); see [State v.] Prober, 297

N.W.3d [297 N.W.2d 1] at 11 [(Wis. 1980), rev’d in part on other grounds by State

v. Weide, 455 N.W.2d 899 (Wis. 1990)] (holding “emergency search may not

extend to areas unrelated to the emergency.”).97

96

United States v. Najar, 451 F.3d 710, 717 (10th Cir. 2006). See also Welsh v. Wisconsin, 466

U.S. 740, 749–50 (1984). 97 Salt Lake City v. Davidson, 2000 UT App 12, ¶ 35, 994 P.2d 1283. See also State v.

Comer, 2002 UT App 219, ¶ 17, n.7, 51 P.3d 55 (“The third prong of the emergency aid

doctrine, on the other hand, “asks whether there was some reasonable basis to associate the

place searched with the emergency.” (quoting Salt Lake City v. Davidson, 2000 UT App

12, ¶ 15, 994 P.2d 1283).

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Since at least 2008, the law has been clearly established that, consistent with all the prior

cases requiring at least reasonable cause to believe there is a connection between the property to

be searched and the emergency creating the need for the search,98 both prongs of the Najar test are

met only if that nexus, which is so obviously missing in this case, is present:

To satisfy the first prong of the Najar test, the government must show the officers

reasonably believed a person inside the home was in immediate need of aid or

protection. Najar, 451 F.3d at 718–19.

* * *

The government must also show that the manner and scope of the search was

reasonable. Najar, 451 F.3d at 718. To satisfy this requirement, the government

must show the officers “confined the search to only those places inside the

home where an emergency would reasonably be associated.” Id. at 720.

United States v. Gambino-Zavala, 539 F.3d 1221, 1225–1226 (10th Cir. 2008).

II. OFFICER OLSEN’S KILLING OF GEIST WAS AN

UNCONSTITUTIONAL SEIZURE UNDER THE UNITED STATES

AND UTAH CONSTITUTIONS FOR WHICH PURVIS AND OLSEN

CANNOT ESCAPE ACCOUNTABILITY BY MEANS OF QUALIFIED

IMMUNITY

A. The Law Was Clearly Established That the Killing of Geist Was a Seizure

Within the Meaning of the Constitutional Protections Against Unreasonable

Seizures

“A ‘seizure’ of property occurs when there is some meaningful interference with

an individual’s possessory interests in that property. United States v. Jacobsen, 466

U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed. 2d 85 (1984). Killing a dog meaningfully

and permanently interferes with the owner’s possessory interest. It therefore

constitutes a violation of the owner’s Fourth Amendment rights absent a warrant or

some exception to the warrant requirement.

Mayfield v. Bethards, 2016 WL 3397503, *3 (10th Cir. 2016).

It has long been clearly established—well before June 18, 2014—that the killing of a dog

98 See, e.g., United States v. Smith, 797 F.2d 836, 840 (10th Cir. 1986) (“there must be some

reasonable basis, approaching probable cause, to associate an emergency with the area or place to

be searched.”)

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is a “seizure” within the meaning of the Fourth Amendment. Not only had the U.S. Court of

Appeals for the Tenth Circuit analyzed seizures of cattle and horses under the Fourth

Amendment,99 but “the clear weight of authority from other jurisdictions provided . . . adequate

notice that the [killing of a pet dog] implicated . . . Fourth Amendment rights. Mayfield v. Bethards,

2016 WL 3397503 at *5.100

B. The Law Was Clearly Established That the Killing of Geist Was Unnecessary

and Unreasonable and, Therefore, a Violation of the Fourth Amendment and

Article I, Section 14 of the Utah Constitution.

The killing of Geist by Olsen was entirely unnecessary and, hence, unreasonable. Olsen

had no lawful reason to be in Geist’s yard in the first place. (See discussion of the unconstitutional

search, supra, section I. A. 1–4.) He failed to take any precautions to determine if a dog was in the

yard.101 He had abundant notice that a dog was in the yard, having heard a dog barking in the

neighborhood that “may have” been—and, of course, was102— Geist at the east end of the

99 See Campbell v. City of Spencer, 682 F.3d 1278, 1280, 1285 (10th Cir. 2012); Stanko v. Maher,

419 F.3d 1107, 1112–15 (10th Cir. 2005); DiCesare v. Stuart, 12 F.3d 973, 977–78 (10th Cir.

1993). 100 Indeed, seven federal circuits had addressed the issue . . ., each holding that killing

a pet dog is a Fourth Amendment seizure. See Viilo v. Eyre, 547 F.3d 707, 710 (7th

Cir. 2008) (“Every circuit that has considered the issue has held that the killing of

a companion dog constitutes a ‘seizure’ within the meaning of the Fourth

Amendment.”); see also Carroll v. Cty. Of Monroe, 712 F.3d 649, 651 (2d Cir.

2013); Maldanado v. Fontanes, 568 F.3d 263, 270–70 (1st Cir. 2009); Andrews v.

City of W. Branch, 454 F.3d 914, 918 (8th Cir. 2006); San Jose Charter of Hells

Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 975 (9th Cir. 2005);

Altman v. City of High Point, 330 F.3d 194, 203, 205 (4th Cir. 2003); Brown v.

Muhlenberg Twp., 269 F.3d 205, 210 (3rd Cir. 2001).

Mayfield v. Bethards, 2016 WL 3397503 at *5. 101 Olsen Depo., 29:17–22, 80:25–81:2. 102 Brooks Decl., ¶ 14; Zayas Depo., 25:8–26:7, 29:5–17; Johnson Depo., 25:14–26:1.

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property,103 yet did nothing to determine if a dog was in the yard104 (which he knew how to do105)

or plan what to do if he encountered a dog in the yard while unconstitutionally searching there. He

recklessly started running as soon as he heard Geist’s bark,106 which anyone should know would

simply provoke a dog to run after him.107 Because Geist did what dogs, particularly

Weimaraners,108 do—harmlessly barking, running after an intruder in his yard, even growling,

baring his teeth and putting his ears back (if in fact, in light of Olsen’s many inconsistent and

doubtful statements,109 that’s what happened)110—Olsen drew his gun, instead of taking other

reasonable measures like using his baton or his boot111 (if necessary, which it was not), and

unnecessarily used lethal violence, brutally killing Geist, a beloved, gentle dog that had never

threatened, attacked or bitten anyone.112

The law was clearly established as of June 18, 2014, that the killing of a companion dog is

an unconstitutional “unreasonable seizure” if it is “unnecessary—i.e., when less intrusive, or less

destructive, alternatives exist,”113 when the pet “presented no danger and when non-lethal methods

103 Olsen Depo., 66:10–67:21, 81:8–83:4. 104 Olsen Depo., 29:17–22, 80:22–81:17. 105 Olsen Depo., 24:11–26:2. 106 Olsen Depo., 86:18–87:11. 107 Beck Decl., ¶¶ 9–12; Shea Decl., ¶¶ 7, 9–10; Brooks Decl., ¶ 7, 10. 108 Brooks Decl., ¶¶ 3–7, 10–13. 109 See e.g., Olsen, Depo., 105:20–106:10, 109:4–6, 109:21–110:7; Olsen Interview, 8:6, 9:25–27;

Olsen Decl., ¶ 25. 110 Brooks Decl., ¶¶ 5–7, 10–13; Bowen Decl., ¶ 9; Shea Decl., ¶ 11; Beck Decl., ¶¶ 5–7, 12. 111 Olsen Depo., 26:8–12; Olsen Interview, 9:18–19. 112 Haley Decl., 4, 6–11; Kendall Decl., ¶ 13; Shea Decl., ¶¶ 10–11. 113

Criscuolo v. Grant County, 540 Fed. Appx. 562, 564 (9th Cir. 2013) (unpublished); see also

Viilo v. Eyre, 547 F.3d 707, 710–11 (7th Cir. 2008) (“police officers [have] reasonable notice that

unnecessarily killing a person’s pet offends the Fourth Amendment”); Flint v. City of Milwaukee,

91 F.Supp.3d 1032, 1046 (E.D. Wis. 2015) (“the City defendants have been on notice since 2001

that unnecessarily killing a person’s dog violates a constitutional right”); Kincheloe v. Caudle,

2009 WL 3381047, **8 (W.D. Tex. 2009) (“If the facts asserted by the Plaintiffs [that a police

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of capture would have been successful,”114 when the dog “does not pose an immediate danger and

where the use of force is avoidable.”115 The “clearly established law” as of June 18, 2014, “derived

from a ‘robust consensus of cases of persuasive authority’ in the courts of appeal” “held that it is

unreasonable for law enforcement to kill a pet dog when the dog did not present an imminent threat

to law enforcement or the public.” Branson v. Price, 2015 WL 5562174, *6 (D. Colo. 2015).

Branson, id. at *5, listed several of the factors considered by courts in determining whether

the “seizure” of a dog is reasonable under the totality of the circumstances. Those factors, all of

which are at issue here (precluding summary judgment) or which actually establish conclusively

that Geist was unreasonably killed, are: (1) whether the dog was “at-large” [here, Geist was in an

enclosed, secured backyard (Kendall Decl., ¶ 11)]; (2) the breed of the dog [Weimaraners are

friendly, warm, kind dogs who do not bite without being cornered (Shea Decl., ¶ 6; Brooks Decl.,

¶¶ 4–6, 11–13)]; (3) whether there was time to find an alternative solution to gain control of the

dog [Olsen could have acted reasonably and just stood still or used his baton or foot if the need

arose (which it clearly did not) (Brooks Decl., ¶ 13; Beck Decl., ¶¶ 3, 5, 7, 9–11, 14–18, 23, 30)];

(4) whether non-lethal means were available to control the dog [many non-lethal means were

available to Olsen, but he instead grabbed and used his gun, unnecessarily and cavalierly killing

Geist (see the citations under the immediately preceding subparagraph (3))]; and (5) whether the

officer was not faced with exigent circumstances that necessitated the killing of the dog] are found

to be true, the Court finds that a reasonable officer . . . would have known that the killing of the . . .

dog . . . was unlawful.”). 114

Andrews v. City of West Branch, Iowa, 454 F.3d 914, 918–19 (8th Cir. 2006) (citing Brown v.

Muhlenberg Twp., 269 F.3d 205, 211–12 (3rd Cir. 2001); Fuller v. Vines, 36 F.3d 65, 68 (9th Cir.

1994)). 115

Taylor v. City of Chicago, 2010 WL 4877797, *2 (N.D. Ill. 2010); see also Robinson v. Pezzat,

818 F.3d 1, 7–8 (D.C. Cir. 2016).

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dog posed a danger to the officer or the public [Geist posed no danger to the officer or the public,

regardless of the irrational and uninformed fears of Olsen upon hearing Geist’s loud bark (Kendall

Decl., ¶13; Beck Decl., ¶¶ 3–8, 12–13, 18–23; Shea Decl., 5–6, 10–11)].

C. The Law Was Clearly Established That the Justification of Exigent

Circumstances for Not Obtaining a Warrant for the Seizure of Geist Is

Unavailing Because Olsen and Purvis Created the Exigency

Since Olsen did not have a warrant to seize Geist, he must be able to demonstrate “exigent

circumstances” for the seizure to be constitutionally valid. Olsen, of course, claims Geist was

barking, growling, and running toward him, with his ears back and his teeth bared. As

demonstrated above, a dog doing what dogs do under the circumstances, naturally and harmlessly,

does not constitute an “exigent circumstance” justifying the killing of the dog. However, even if it

did, Olsen cannot find refuge in such an “exigent circumstance” because his unconstitutional entry,

and his irrational and provocative running away from a barking dog (which he had not even seen),

created the purported exigency.

At the time Olsen killed Geist, the law was clearly established that law enforcement officers

cannot create the exigency they invoke to justify their Fourth Amendment search or seizure.116

Here, Olsen’s Fourth Amendment violation of entering and searching Kendall’s backyard created

the very situation he invokes as allowing him to shoot and kill Geist. Just as “it is . . . an essential

predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate

the Fourth Amendment in arriving at the place from which the evidence could be plainly

116

McInerney v. King, 791 F.3d 1224, 1235 (10th Cir. 2015) (“law enforcement officers may not

‘create’ the exigency justifying their intrusion into a home.”) (quoting United States v. Martin, 613

F.3d 1295, 1304 (10th Cir. 2010)).

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viewed,”117 so too it must be an essential predicate to the killing of Geist that Olsen did not, through

unconstitutional means, place himself in the “danger” he claims as justification for the killing.

“Just as exigent circumstances are an exception to the warrant requirement, a police-

manufactured exigency is an exception to an exception.” United States v. Rico 51 F.3d 495, 502

(5th Cir. 1995). Here, Purvis manufactured the purported exigency by instructing police officers

to unconstitutionally enter curtilages of homes solely on the basis they were located within a

distance police believed K.H. may have wandered. Then Olsen also manufactured the purported

exigency (i.e., Geist running toward him) by (1) being where Olsen did not lawfully belong, which

provoked Geist to react as he did with others who came into his yard,118 and (2) running in a

direction away from where he first heard Geist bark, provoking Geist to run toward him.119

III. EITHER THE CITY OR OLSEN IS LIABLE FOR OLSEN’S

NEGLIGENCE AND TRESPASS

In Utah, government employees “were personally liable for civil wrongs committed in a

ministerial or operational capacity.” Lyon v. Burton, 2000 UT 55, ¶ 45 5 P.3d 616. Hence, there

must be some remedy for damages resulting from their negligence, either as at common law or

pursuant to an alternative remedy. Berry v. Beech Aircraft, 717 P.2d 670 (Utah 1985).

The Governmental Immunity Act of Utah (“GIA”) has waived the immunity of

governmental entities (which includes Salt Lake City Corporation) for the negligence of

employees. Utah Code Ann. § 63G-7-301(2)(i) (previously § 63G-7-301(4)). That waiver provides

117

Horton v. California, 496 U.S. 128, 136–140 (1990). 118 Haley Decl., ¶ 9 (“When guests came to our home, Geist would often initially bark loudly at

and then run toward them. When he reached them, he was always friendly and harmless and never

showed any aggression or threat of any harm whatsoever toward anyone.”); Brooks Decl., ¶ 6. 119 Brooks Decl., ¶ 7, 10, 13; Beck Decl., 10–13.

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an alternative for the abrogated claim (with certain exceptions) against the individual employees

effectuated by § 63G-7-202(3)(a) and (c) (previously § 63G-7-202(3)(c). However, the GIA

claims to immunize both the governmental entity and the employees for negligent acts or

omissions “if the injury arises out of or in connection with, or results from,” inter alia, intentional

trespass or violation of civil rights. § 63G-7-201(4)(b) (previously § 63G-7-301(5)(b)). That is

clearly a violation of the Open Courts Clause, as argued by Kendall at greater length in connection

with Defendants’ Motion for Judgment on the Pleadings on Twelfth Cause of Action.

Ironically, Defendants claim in this case there has been no trespass nor violation of civil

rights, yet claim the City escapes liability at this juncture for the negligence of individual

defendants (all employees of the City) because of the exceptions from entity liability under § 63G-

7-201(4)(b) for intentional trespass and violation of civil rights.

Until there is a verdict as to who is liable and for what, Kendall is entitled to pursue his

claims for negligence against either the individuals or the City, pursuant to Article I, section 11

(the Open Courts Clause) of the Utah Constitution. Berry v. Beech Aircraft, 717 P.2d 670 (Utah

1985).

Since someone must be liable for the negligence of the government employees, and since

Defendants claim there is no individual liability for the negligence of the individual defendants,

Kendall has moved the Court to permit him to make minor amendments in his Complaint, asserting

the City’s liability for the individual defendants’ negligence, pursuant to Utah Code Ann. § 63G-

7-301(2)(i) (previously § 63G-7-301(4)).120

120 Defendants have made clear they do not object to the amendment because of the timing, but

solely because they assert that amendment would be futile. Opposition to Motion for Leave to File

a Second Amended Complaint, 2.

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Movants simply contend, without more, that “Kendall cannot establish the necessary

elements of a trespass or negligence claim” against Olsen. Movants’ Memorandum at 31. Movants

assert, essentially, that because Olsen “was lawfully on Kendall’s property because he was looking

for a missing three year old boy,” there could be no claim for trespass.” Id. at 32. However, it has

been abundantly demonstrated, and will be proven at trial, that Olsen and Purvis are both liable for

trespass.

A person is liable for trespass when, without permission, he “intentionally ‘enters

land in the possession of [another], or causes a thing or a third person to do so.”’

Carter v. Done, 2012 UT App 72, ¶ 17, 276 P.3d 1127 (alteration in original)

(quoting Restatement (Second) of Torts, § 158(a) (1965); see also Restatement

(Second) of Torts § 158 cmt. c (1965).

Purkey v. Roberts, 2012 UT App 241, ¶ 17, 285 P. 3d 1242 (emphasis added). Olsen was

wrongfully on Kendall’s property, and Purvis wrongfully instructed him to engage in the

unconstitutional and otherwise illegal search.

Likewise, the record, as reflected above, abundantly supports a claim for negligence against

Olsen for his failure to determine if Geist was in the yard before he entered it; entering the yard

unconstitutionally and otherwise in violation of the law; failing to determine if Geist truly posed a

danger; provoking Geist to run after Olsen, then using that as an excuse for claiming an “attack;”

and failing to utilize non-lethal measures in dealing with Geist and, instead, unnecessarily and

unreasonably shooting him dead. Summary judgment is precluded when the evidence adduced and

described in detail above demonstrates “the intentional doing of a wrongful act, or the wrongful

failure to act, without just cause or excuse, where the actor is aware that the actor’s conduct will

probably result in injury.” Utah Code § 63G-7-102(10).

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IV. SALT LAKE CITY IS LIABLE FOR THE NEGLIGENCE OF THOSE WHO

HAVE ACTED ON BEHALF OF THE CITY, PARTICULARLY IN REGARD

TO POLICIES AND PRACTICES WHICH LED TO THE DEATH OF GEIST.

Movants assert that “[t]o the extent Kendall asserts claims against Salt Lake City for

trespass and negligence for Officer Olsen’s entry into Kendall’s backyard those claims also fail.”

Movants’ Memorandum at 32. However, Kendall has not asserted any claim against Salt Lake City

for trespass; his only claims for trespass are against Olsen and Purvis.

As to Kendall’s claims against the City for Olsen’s and the other individual defendants’

negligence, he will be entitled to pursue such claims pursuant to the GIA, if leave to file an

amended complaint is granted, as described in the immediately preceding section.

Kendall’s claims against Salt Lake City for negligence in the Thirteenth Claim for Relief

are based on the negligence of its employees and agents in condoning unconstitutional searches

and promulgating policies incorrectly setting forth the standard for appropriate warrantless

searches, all of which led to the unconstitutional and otherwise illegal and, ultimately, tragic search

of Kendall’s backyard.

Those claims relate to the negligence of the City’s employees, who are unknown to Kendall

but for whose negligence the City is liable to Kendall pursuant to Utah Code Ann. § 63G-7-

301(2)(i) (“Immunity from suit of each governmental entity is waived: (i) subject to Subsection

63G-7-201(4), as to any injury proximately caused by a negligent act or omission of an employee

committed within the scope of employment.”) “Entity liability is, in all circumstances, derived

from the acts of its agents, whether it be under theories of respondeat superior, negligence, or other

imputed conduct (civil or criminal).” C.J.C. v. Corporation of Catholic Bishop of Yakima, 985

P.2d 262, 268 (Wash. 1999) (en banc). Someone on behalf of the City negligently drafted and

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promulgated the constitutionally infirm policy regarding exigent circumstances, without even

mentioning the clearly established law that there must be reasonable cause to believe there is a

connection between the property to be searched and the perceived “exigency.” The failure to

include that crucial element in the SLCPD policy has led police officers to erroneously believe

that in cases of missing children, they have unlimited authority to search wherever a child might

have wandered and wherever the child might have access. See Worsencroft Depo., 81:19–83:5.

The City is liable for such negligence. Utah Code Ann. § 63G-7-301(2)(i).

V. KENDALL IS ENTITLED TO A TRIAL ON HIS CLAIMS AGAINST

OLSEN FOR TRESPASS TO CHATTELS AND CONVERSION

Kendall will not pursue claims against Purvis on any claims for trespass to chattels or

conversion (although he will continue to pursue his claims against Purvis for trespass, since he

caused Olsen to unconstitutionally enter Kendall’s backyard). However, Kendall is entitled to

pursue his claims against Olsen for trespass to chattels and conversion, having presented

compelling evidence of Olsen’s wrongful trespass to chattel and conversion.

Olsen is liable to Kendall for trespass to a chattel. (1) He dispossessed Kendall of Geist;

(2) Geist was impaired as to his condition, quality, and value; (3) Kendall has been deprived of the

use of Geist; and (4) harm was caused by Olsen to Geist, in which Kendall had a legally protected

interest. Section 218, Restatement (Second) of Torts (1965) (June 2016 update).

Olsen is also liable to Kendall for conversion. “‘A conversion is an act of willful

interference with a chattel, done without lawful justification by which the person entitled thereto

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is deprived of its use and possession.’”121 “One who intentionally destroys a chattel . . . is subject

to liability for conversion to another who is in possession of the chattel or entitled to its immediate

possession.”122 See, e.g., Lincecum v. Smith, 287 So.2d 625, 628 (La. App. 1974) (“When [the

defendant] authorized destruction of the puppy there was a complete interference with the owner’s

rights, and an obvious conversion.”).

VI. KENDALL IS ENTITLED TO A TRIAL ON HIS CLAIM FOR

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Kendall has demonstrated compellingly that “any reasonable person would have known

that [emotional distress] would result” from Olsen’s killing of Geist and that “his actions [were]

of such a nature as to be considered outrageous and intolerable in that they offend against the

generally accepted standards of decency and morality.”123 Hence, Kendall is entitled to present his

case for a jury’s determination.

Movants would have the Court deprive Kendall of his opportunity to present his substantial

claim against Olsen for intentional infliction of emotional distress because Olsen’s killing of Geist

did not occur in Kendall’s presence.124 However, Kendall need not have been present during the

killing to recover for his emotional distress. The presence requirement invoked by Movants is

triggered only when the outrageous conduct is directed toward a third “person.” Movants’ citation

to Hatch v. Davis, 2006 UT 44, ¶ 31, 147 P.3d 383, is inapposite inasmuch as that case, applying

subsection (2) of Restatement (Second) of Torts § 46 (1965) (which applies only to “conduct . . .

121

Fibro Trust, Inc. v. Brahman Fin., Inc., 1999 UT 13, ¶ 20, 974 P.2d 288 (quoting Allred v.

Hinkley, 8 Utah 2d 73, 328 P.2d 726, 728 (1958)). See also Jones v. Salt Lake City Corporation,

2003 UT App 355 ¶ 9, 78 P.3d 988. 122

Restatement (Second) of Torts § 226 (1965). 123

Bennett v. Jones, Waldo, Holbrook & McDonough, 2003 UT 9, ¶ 58, 70 P.3d 17. 124 Movants’ Memorandum at 44.

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directed at a third person”), addressed only whether a spouse had to be present during an assault

on a family member. (Even there, the court considered whether presence should be required in a

particularly egregious situation. Id. ¶ 27.) Because this case does not involve the harm of a “third

person,” subsection (2) of § 46 of the Restatement has no application. The controlling standard is

§ 46(1), which reads, in relevant part, as follows:

One who by extreme and outrageous conduct intentionally or recklessly causes severe

emotional distress to another is subject to liability for such emotional distress . . .

Analysis under subsection (1) of Restatement § 46 is appropriate when considering claims

of intentional infliction of emotional distress in connection with the killing of an animal.125

“Emotional distress will certainly result where the owner sees or even hears about reckless or

negligent behavior causing injury to or the death of a beloved animal friend.” 91 A.L.R.5th 545.

VII. SUMMARY JUDGMENT MUST BE DENIED BECAUSE OF THE

OVERWHELMING EVIDENCE SUPPORTING KENDALL’S CLAIMS

Summary judgment can be granted only if “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). Clearly,

Kendall has more than met his burden of establishing that there are genuine issues of material fact.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585 (1986). In assessing whether

there are genuine issues of material fact, all inferences and all evidence must be viewed in the light

most favorable to Kendall. Id. at 587–88. The factual record demonstrates conclusively that

Olsen’s entry into and search of Kendall’s property was unconstitutional and otherwise illegal.

125 See, e.g., Richardson v. Fairbanks N. Star Borough, 705 P.2d 454, 456 (Alaska 1985); Katsaris

v. Cook, 180 Cal. App. 3d 256, 267, 225 Cal. Rptr. 531, 537 (Ct. App. 1986) (analysis under state

tort law analogous to subsection (1) with no presence requirement); Gill v. Brown, 695 P.2d 1276,

1277 (Idaho App. 1985); Daughen v. Fox, 539 A.2d 858, 860 (Pa. 1988).

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And, as in Gregory v. City of Vallejo, 63 F.Supp.3d 1171 (E.D. Cal. 2014), there is a “genuine

dispute as to whether the killing of plaintiff’s dog was reasonable”, id. at 1177–78, whether Geist

was “aggressive,” id. at 1178, whether there was an “immediate threat of death or serious bodily

harm” at the time Olsen shot Geist, id., and whether Olsen had alternative, non-lethal means of

handling the situation. Id. at 1179. Because the evidence of Olsen’s unconstitutional search and

Purvis’s instructions to engage in it is overwhelming and because there are genuine disputes of

material fact as to whether the killing of Geist was reasonable, summary judgment must be denied.

CONCLUSION

The record is replete with evidence strongly, and in some instances uncontrovertibly,

establishing that Purvis instructed police officers to engage in unconstitutional searches of

properties having no connection to the missing child, that the City’s policies and practices caused

and condoned such unconstitutional conduct, and that Olsen unconstitutionally searched the

curtilage of Kendall’s home and unreasonably killed Kendall’s beloved, gentle dog Geist. To

vindicate his fundamental constitutional and other legal rights, Kendall is entitled to his day in

court, to present his evidence to a jury, and to hold Purvis, Olsen, and the City accountable for the

tragedy that befell Kendall as a result of the constitutional violations and other illegal conduct.

Respectfully submitted this 29th day of August, 2016.

/s/ Ross C. Anderson

Ross C. Anderson

Attorney for Plaintiff/Counterclaim Defendant

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